One of the most common claims made against those attacking medical malpractice attorneys and urging passage of “tort reform” legislation is that medical malpractice lawsuits cause increases in “Defensive Medicine.” The logic goes that because doctors fear being sued they order tests and other medical procedures which are entirely unnecessary. These unnecessary medical procedures drive up the cost of care overall, these proponents say, and so eliminating it via tort reform is a public good.
Astute readers likely spot an immediate problem with this argument. It is perverse to take away right of medical malpractice victims-who did nothing wrong-in order to “fix” a problem of medical care waste. If defensive medicine is an issue, why not address it head on? Let’s crack down on wasteful medical spending, not take away legal rights from those injured by the misconduct of those professionals.
While “defensive medicine” sounds innocuous, in the end it is often nothing more than healthcare fraud. It is illegal for medical care providers to make insurance claims or Medicare and Medicaid claims for medical services which are unnecessary. If doctors are doing this, they need to be stopped. Yet, sometimes it is incredibly difficult to catch this form of fraud. It is often subtle and hard for investigators to root out.
Instead, our Illinois medical malpractice lawyers appreciate that in the past the main way that this fraud was caught was with the help of whistleblowers. Fortunately, there has been an increase in the number of whistleblower cases over the past few years. According to a USA Today story, of the $16 billion recovered by the federal Justice Department in these cases, more than 36% has come in the last two years. Observers explain that this is a result of the False Claims Act of 2009 and the Obama administration’s effort to crack down on misuse of funds. It is a strong reminder of the benefit of attacking a problem directly-insurance fraud-instead of via unnecessary indirect actions-trying to take away rights of medical malpractice victims.
As one federal legal professional working on these efforts explained, “We’ve made health care fraud such a high priority; we’ve been using this tool very, very aggressively.” The effort has been successful in large part because of the amped up tools available to those fighting this fraud. Under the 2009 law, the government can collected up to three times the amount fraudulently taken. Of course, this is vital, because if the risk to the company engaging in the practice were only the amount of the fraudulently taken money itself, than there would be much financial incentive to risk the practice in hopes of not getting caught.
In fact, even with the success in the effort so far, many believe that there is still room for improvement to crack down on insurance fraud even more. As the justice department lawyer explained, “About 3,500 fraud cases have not been investigated. Why don’t they get the resources? For every case they prosecute, they bring in more money.” Our medical malpractice lawyers understand that the reason is often political. There are many different interests at stake in these situations, and common sense and fairness often get thrown out in the window in favor of appeasing powerful groups like pharmaceutical companies and hospitals.
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