Migaines in My Colon*
The Great Lie of Tort Reform

By Mark David Blum, Esq.

(*Part of an ongoing series of discussions of the state of medicine in our society and possible solutions thereto),

Once again, the forces of evil are on the march. Republicans are focusing America’s ire on “the lawyers” as being at fault for the high cost of medicine. Bazillion dollar verdicts are trotted out as being the reason your prescription costs are so high. Me thinks however, that those who target lawyers and jury verdicts are playing to Americans’ jealousy and lower pettiness than being truly interested in healing a dying system. Before civil rights and social responsibility is cast aside, medicine should first heal its own self.

It is important we as a nation talk to each other. Fingerbanging or fingerpointing solves nothing. We end up factionalized and confused and nothing is accomplished. We will never be able to talk so long as professional labels intefere with cooler heads and rational thinking. Yet modern medicine has no qualms with 'blaming the lawyers'. So let the blame game begin.

Medicine and their bought-and-paid-for lobbyists and politicians have done well in marketing the great lie that lawyers are the cause of skyrocketing malpractice insurance costs. The reactionary right wing has made it its mission to give aid and comfort to those who do us harm while at the same time, punishing victimized Americans.

Let us review, shall we? First, lawyers don’t award verdicts. Juries do. They do it after they have had a chance to review all the evidence and hear from experts from both sides. Juries then calculate the cost of damages and make what they feel is an appropriate award. Who are jurors? You and me.

Second, what modern medicine seems to demand is the right to continue practicing with absolute immunity. They feel exempt from having to answer for mistakes. Doctors refuse to even apologize for their mistakes. Medical practitioners hide in “M and M” conferences to keep facts from public scrutiny. Butchers are constantly protected by the powerful AMA lobby. Despite rampant nosocomial deaths, seven thousand dead annually just from sloppy handwriting, as so long as doctors keep removing the wrong testicles, misdiagnosing diseases, and causing needless pain and suffering, then they are going to have to answer for their mistakes and sins. That is the price we all pay for living in a civilized society. At the same time, it is the cost of covering up medical mistakes that is causing all of us to suffer. Medicine should clean its own house first before tearing down mine.

Next, a major contributor to the high cost of medicine is the scam of billing. When a patient sees the doctor, not only is the patient charged for the visit, but is also charged for every thing done. Every test given, every utensil used, and every person involved also begets a charge to the patient. As a lawyer, it is inconceivable to not only charge by the hour, but to also charge for every paperclip, every piece of paper, and for the quantity of ink used in my pen. Hiding behind the curtain of being lifesavers, modern medicine claims immunity from scrutiny for its billing practices.

But, the greatest evil and biggest demon in the hellish upward spiral of the cost of medicine is the presumption that medicine is entitled to be paid in full up front and to have that payment guaranteed. Modern medicine has created a monster that is feeding on the American pocketbook. It is called insurance. With the creation of this industry, medicine is protected from competition, rates are set, and benefits are predetermined.

America has to wake up to the con game called “health insurance”. There is absolutely no reason for a financial institution to involve itself in the relationship between doctor and client. Hospitals and medical providers deserve to be paid. Yes, the cost of services and products are extremely high.

Let’s say ferinstance, I want to buy a car. Someday I will probably really need a car and so I should start saving for one; or at least the down payment. If suddenly I absolutely had to have a car today because mine broke and I cannot fix it and I do not yet have the money saved for a new one, I can run up to Billy Fucillo’s and be welcomed with a HUUUUGE hug. Surely, he will sell me a car and I will send him a check every month for the next several years.

Removing insurance from the equation will remove a very costly middle man. The role played by insurance companies; whipping up fear and panic is the #1 direct, actual, and proximate cause of skyrocketing and out of control medical service costs. Insurance companies are directly responsible for a markup which triples again threefold the cost of services rendered. Insurance companies fix the market prices. Insurance decides the services that cannot be rendered and which ones must be delivered. Cutting out the middle man will force the market prices to adjust, alternatives to financing will be reached such as doctors and hospitals carrying the paper (like the rest of the world), and a more sane and rational balance will be found. Don’t ban insurance. Just stop seeing it as the ultimate solution to our nation’s health care crisis.

Let us be clear: The pharmaceutical companies, the HMO’s, the Insurance industry, and medical product corporations are the nation’s single largest contributors of campaign funding. The supply of money is endless and the pandering goes on constantly; and for good reason. Billions of dollars are at stake and only insurance companies, pharmaceutical companies, and HMOs stand to win or lose depending on the flow of cash into that industry.

Never forget that the skyrocketing cost of medical care is 100% determined by the whims and dictates of insurance company adjusters, actuaries, and stockholders. Insurance companies dictate via contract language what and how they will pay each doctor or hospital, regardless of particularized or local costs. Refusing to deal with insurance companies is always an option. Doing so will remove you as a provider from their list and our free market economy is suffocated by the insurance company. “Quality” of service is not a factor; only the cost.

Every day, hospital and medical office billing personnel fight to get paid just to cover the cost of doing business. For example, Excellus Blue Cross Blue Shield pays less than 50% of the actual charges of a procedure while at the same time, charging the patient a higher premium and reducing the accessibility to the procedure itself. Only the insurance executives are winning this fight. They sit and feed their greed while the hospitals are told they have to “justify” pricing to an uneducated public.

Highly paid marketing firms have convinced the media that the cost of medicine is skyrocketing because of lawyers, because of duplication, because of greed by hospitals and doctors, because of defensive medicine, and because we allegedly have the best health care system in the world making the cost thereof something we do not negotiate. Nobody wants to go short on medical care.

The facts establish that none of the marketing points made by the big pharmaceutical and big insurance industry are true. Lawyers and lawsuits are not the cause of high premiums, they are just who gets the blame. Duplication in the market is a good thing as competition will always yield the better product for a lower price – insurance defeats this by fixing prices. Syracuse may have too many MRI sites, but that is only because insurance companies control where their patients go – not the market.

Just like lawyers, hospitals are already mandated by law to provide a certain amount of charity care and must work with the indigent and underinsured population to adjust fees based on ability to pay. Once payment plans are set up, our hospitals then allow patients to pay down the debt, interest free. (Query why the State Education Department does not mandate physicians and medical providers in New York to provide a certain amount of pro bono work; as we the citizens bless these persons with perks and benefits not available to the general population).

Consequently, the system is already set up to take insurance companies out of the equation. Medicine, like education, is one of those necessary products that society must suck up and provide collectively – even if doing so is not profitable. It should be considered a part of our social contract and everything should be done to open up and make full medical care available to everyone.

So please, quit blaming the lawyers. We are no more responsible for the cost of medical insurance and malpractice premiums than is a bullet responsible for a death. No lawyer would represent a healthy patient, who was not injured, and whose doctor treated them with respect. Those clients never turn up in our offices.

Medicine has to wake up to the fact that it is its own worst enemy. Doctors are regular citizens and deserve no special favors. They should be compelled to give up the stanglehold of the Harrison Act and return to their natural role in society. Medicine needs to stop covering up for the butchery of colleagues. Most importantly, get rid of the cancer called “Insurance”.

Back to the MarkBlum Report

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or when all else fails

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