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Freedom of Choice is key to Ohio Radically Reducing Healthcare Costs

Proposed legislation that commits Ohio’s healthcare system to free-market principles could make it much easier for Ohioans to waive their right to sue medical professionals for negligence and malpractice. Though the legislation stands very little chance of gaining traction, even with Ohio’s supposedly conservative republican supermajority in both chambers of Ohio’s legislature. Why? This proposal would negatively impact attorneys and attorneys dominate the landscape in the State’s capital.

Why would Ohioans want to voluntarily relinquish their right to sue for negligence and malpractice?

Cheaper healthcare, of course!

The republican and libertarian argument – is that patients and healthcare professionals should be free to easily make their own agreements about a patient’s right to sue for negligence and/or medical malpractice. Right now, the default when seeking medical care is that everyone has the right to sue. This default position, combined with those racing to join the legal profession is making healthcare prohibitively expensive in Ohio.

But, what if that was not the case?

The much talked about ballyhooed legislation, by a conservative think-tank putting the final touches on the legislation, would by default make all negligence and medical malpractice litigation unobtainable without a declaration form that specifically allows a patient to pursue negligence and malpractice litigation. This form would be signed and submitted by a patient before medical treatment if they wanted to option to pursue a malpractice claim.

Past arguments against such proposed legislation by legal associations and attorney lobbying groups is that the public is not smart enough to make good decisions. Their claim: Ohioans would overwhelming give up their right to sue. This, they argue, would decimate the legal industry in Ohio and leave thousands without legal recourse to claim compensatory damages.

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“Not true!” says Michael Miller of the Ohio Veritas Project. “There are very few legitimate medical malpractice cases when compared to the total amount of medicine practiced in Ohio. Ohio’s doctors and nurses are good at their jobs. While Ohioan’s would voluntarily give up their right to sue for medical malpractice, they are not giving up their health insurance which would cover their compensatory damages if something went wrong. What we are proposing is allowing Ohioans to remove attorneys and unnecessary litigation from the equation.” Miller added.

Conservative and libertarian organizations overwhelmingly believe the proposed “right to choose” legislation is integral to Ohioans “right to life” and the freedom from an indirect, but almost mandatory imposition, to purchase a product against their will, medical malpractice insurance.

With Ohio’s Medicaid costs for 2017 expected to exceed 32% of the State’s total annual budget. With Ohio’s expected budget to reach nearly $70 billion for 2017. Ohio’s healthcare costs for Medicaid alone can be expected to be in excess of $22 billion. This figure is growing on an annual basis as Ohio’s economy and population is shrinking.

Why are people fleeing Ohio?

Many believe those leaving Ohio is due to a lack of growth and opportunity. Conservatives believe that the lack of opportunity is due to Governor John Kasich’s embrace and expansion of Medicaid.

While it can be argued that Kasich’s policies have kept many of Ohio’s hospitals open and have helped treat many that cannot afford healthcare. His policy did not address the underlying problem: the exorbitant cost of healthcare.

The Medicaid figures do not even begin to touch the amount spent in the private healthcare market.

“Healthcare is the 600 pound gorilla in the room in Ohio.” says a legislator. “Healthcare dominates the budget and everyone knows the problem but it is political suicide to address the problem.” he says begrudgingly. “So we sit by and watch the State implode!” he added.

Allowing patients the legal ability to waive their right to sue, by default, will undoubtedly result in ― lower healthcare costs, better efficiency in healthcare treatment, less litigation, more expendable income for Ohioans, a boost to the Ohio economy, an increase in overall freedom, and better overall healthcare.

While, many legal professionals cite that malpractice insurance equates to only 2% of medical costs, it is the dynamic of negligence and malpractice litigation within the medical system that has fundamentally changed how medicine is practiced. Malpractice lawsuits have had the consequence of setting medical regulations and procedures under which insurance companies will provide coverage. This has had the effect of Ohio’s legal system and insurance companies determining how medicine is practiced rather than being determined by Ohio’s medical professionals. “This legal dynamic has led Ohioans to have unrealistic expectations pertaining to healthcare outcomes” argues David Codray with the Ohio Veritas Project. “This has had the effect of any medical treatment that provides a less than satisfactory outcome as being ripe for a lawsuit. More and more Ohio patients are looking to cash in at the expense of Ohio healthcare system!” Codray further exclaimed. Codray further argued “If these attitudes were applied to other industries then Ohioans would look to sue when they had a bad meal at a restaurant and pretty soon there would be no restaurants.”

All of Ohio’s malpractice litigation has had a ratcheting-up effect on medical costs.

For example, an expensive medical diagnostic test may be required by an insurance company to reduce its exposure to medical malpractice even though such a diagnostic test may only be of value one percent, or less, of the time. This could be due to the insurance company having to pay out a large sum award to cover a lawsuit where the diagnostic test was not run in a rarely occurring case. Because of the amount of the award (liability) and the even remote possibility of further lawsuits, this expensive test now becomes a requirement for all the cases a hospital processes to avoid the remote exposure to malpractice lawsuits.

This avoidance of liability dynamic dramatically raises the procedural costs of medicine and has led to artificially inflated healthcare costs.

Previously, doctors would make healthcare decisions, not lawyers, and not insurance companies, normally in consultation with their patients, and how much debt and risk the patient wanted to expose themselves to. Because of Ohio’s litigation friendly legal system, those decisions have been taken away from Ohioans.

“Over time, the legal system and insurance companies have bastardized Ohio’s healthcare system to the point that many Ohioans cannot afford coverage without subsidization from other taxpayers.” said Jon Morrow, chief economist for the Ohio Veritas Project. “Essentially, this system is continuously and unnaturally subsidizing the legal profession because of the default position of a patients right to sue. If given the choice between no healthcare due to expense, and the ability to receive affordable healthcare by waiving the right to sue,  it is only natural to assume that most Ohioans would choose to waive their right to sue for a majority of their healthcare.” Morrow further commented.

But it is not surprising Ohio is experiencing this problem. As with other states, Ohio’s state capital is dominated by those either in the legal profession or pursuing a legal profession. So it is not likely the Ohio Veritas proposed legislation will gain traction with Ohio lawmakers. It may however, gain traction with gubernatorial candidates concerned with fixing Ohio’s economy.

“Malpractice waivers by default, would give all Ohio patients more choice, greater accessibility to healthcare, and reduce overall healthcare costs. It would also limit litigation which would put hundreds, if not thousands of lawyers out of work.” was a quote by a retired lawyer on a recent Ohio Veritas Project conference call. For every business owner ever wronged by an attorney, this could be political gold for gubernatorial candidates to take up the Ohio Veritas Project’s position.

A recently interviewed Ohio Tea Party leader wishing to remain anonymous had this to say. “For all of Governor John Kasich’s invocation of Godly principles that led his decision to expand Medicaid in Ohio against his own party’s wishes, and against the Ohioans that helped pass the Ohio Healthcare Freedom Amendment, Governor Kasich has not provided Ohio’s healthcare professionals the environment to provide charitable medical services. Kasich’s objectification of the government as a human with a conscience has ironically prevented actual humans with a conscience from helping their fellow man.”

It’s not just in Ohio where physicians and nurses are prevented from helping:

What if a retired physician, Harvard-trained no less, wanted to give away medical care?

You’d think the huge demand for healthcare would make it easier for the physician to accomplish this, but that’s not the case.

When funding dried up for New York physician Lloyd Hamilton’s free care clinic, he wanted to continue serving the same patients, even depriving himself of a salary. Unfortunately, it wasn’t so easy, as appeals to charities and community organizations went unheard for funds to operate his free clinic.

Furthermore, malpractice issues forced Dr. Hamilton to pay $10,000 out of his own pocket in order to practice medicine, and other retired doctors who wanted to donate care to his free clinic ran into the same liability obstacle.

If patients were willing to waive their right to sue these free clinics and healthcare providers, the free clinic would be in operation and  probably would find many more physicians able to offer care for free.

In these economic times, where health services are becoming prohibitively expensive for many, why shouldn’t Ohio consider giving patients the right to waive their rights?

Permanent liability exposure forces medical professionals to purchase medical malpractice insurance, the cost of which, unless they are independently wealthy, they pass on to their patients in the form of higher fees. Allowing patients by default, to easily waive their right to sue, would eliminate much of the need for medical malpractice coverage and, economists argue, thereby enable patients, either directly or through their health insurance carriers, to negotiate lower fees with physicians.

It is easy to come to the conclusion that by passing legislation to waive the right to sue for negligence and medical malpractice that it will only enhance patient choice and profoundly reduce healthcare costs. It hard for Ohioans to dismiss that over time medical professionals will once again determine their own best medical practices instead of lawyers and insurance companies.

“Many patients may elect, and are expected, if such legislation is passed, to waive their right to sue during regular doctors visits, yet retain their right to sue for major surgeries, treatments, and therapies.” said Morrow.  “This dynamic extrapolates to more Ohioans visiting their doctors more often and identifying health issues earlier, when those health issues are more cost effective to treat. This helps to reduce Ohioans overall medical costs by reducing catastrophic illnesses through prevention and early identification.” Miller added

If healthcare professionals have no fear of facing medical malpractice lawsuits, will this mean Ohioans will have a substandard health care system?

“Not at all!” argues Miller. “Our proposed legislation enables an unbiased medical board to review accusations of malpractice. If malpractice is determined, it can be noted on a database that is openly available to the public.” stated Miller.  “Healthcare professionals will have an economic incentive to be vigilant against malpractice as consumers wishing to purchase medical services will either not purchase from healthcare professionals with a history of malpractice or will do so at a greatly reduced price.” Morrow added.

Another more controversial aspect of the proposal would greatly reduce Ohio’s medical cost obligations by prohibiting those receiving Medicaid from pursuing medical malpractice and negligence claims. Conservative and free market economist contend this will have the effect of more people on Medicaid taking an interest in researching their healthcare professionals and their own medical treatments. “A more informed public on medical care and the costs associated with that care, makes better medical decisions, saving all Ohioans money, and makes Ohio’s healthcare system better.” said Morrow.

“In most cases, Medicaid is a last resort for those that cannot afford health insurance. By many, it can be seen as charity. Allowing medicaid patients the right to sue when they are not paying for their medical services is akin to an injured illegal alien not paying for a medical service, but suing for malpractice for the service he didn’t pay for.” said Miller.

One thing is definitely clear. Governor Kasich’s religious beliefs and embracement of big government principles have obligated all Ohioans to an unsustainable healthcare system and has greatly hastened the State’s’ movement towards a potentially irreversible death spiral status. If Ohio is to survive and dominate on the world stage, it must pass a sustainable healthcare policy soon, that greatly reduces Ohio’s healthcare costs. Otherwise the legacy of John Kasich will be “The Man that Destroyed Ohio.”

The Ohio Veritas Project’s proposed legislation is widely expected to be introduced in early 2018 during Ohio’s gubernatorial primary race.

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