How many references to "tort reform" have you heard since we started the national debate over healthcare reform? No town hall discussion was complete without hearing at least one participant tout, usually against health care reform, offer tort reform as a solution to the problem. Republicans in the House and Senate have offered no healthcare reform plan of their own but tort reform is one of their most frequent suggestions. And we rarely ever hear any of the folks pushing tort reform quantify the need for or benefit of such a reform. Tort reform is just another talking point they employ to distract focus from the real problems and a real solution.

Michael Hiltzik took a look at tort reform this week in his column in the Los Angeles Times (h/t CJR's The Audit). Hiltzik begins by looking at the chief complaint of frivolous lawsuits or in the case of health care, medical malpractice. He then took the step of looking for factual information to determine how much of a problem exists:

"It can be hard to tell until late in the litigation if there's really no claim," Michelle Mello, an expert on malpractice at Harvard’s School of Public Health, told me. An extensive study she helped conduct of malpractice case files showed that frivolous cases, as usually defined, are rare -- and those that do get brought usually don't yield a payment to the plaintiff.

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The truth is that medical liability isn't a big driver of health costs overall. Studdert estimates the cost of malpractice litigation, in court and through defensive medicine, at roughly 2% to 3% of all U.S. healthcare spending -- in other words, no more than $50 billion out of a total annual bill of $1.7 trillion. (You'll hear estimates as high as $200 billion from outfits like the American Medical Assn., which is the antithesis of an objective source.)

Hiltzik does suggest some tort reform is needed. But he cautions that the solution most frequently touted is flawed. States where legislation was passed to cap awards given in medical malpractice lawsuits have not seen lower healthcare costs or lower malpractice insurance premiums. And there are negative consequences to those with legitimate claims:

Not the victims of medical error, at least not fairly: A Rand Corp. study in 2004 found that the cap fell disproportionately on "those with small economic losses but great damage to the plaintiff's quality of life."

The disproportionate must be balanced by some part realizing a greater benefit. Who would that be? Read the column where Hiltzik has provided some real numbers that show insurers may be the biggest winners.

And bookmark the Harvard study for future reference when you end up in one of those conversations with someone pushing tort reform as a real solution for healthcare reform. CJR's Ryan Chittum read the study and added this in his post in The Audit:

I looked at the study and it found that the majority of cases were really injuries caused by medical error. Some 37 percent were real injuries not caused by medical error. Just 3 percent were cases with no injury.

More interesting, though, is that the study found that claims due to actual medical error accounted for 84 percent of total costs among 1,500 cases it examined. If that holds broadly, it would mean just $8 billion a year of that $50 billion total is spent on cases with no medical error (it’s unclear how much of the defensive medicine portion would be due to this minority of cases). And not all of those cases are frivolous.

And as Hiltzik points out, the researchers found that more legitimate claims get denied than illegitimate claims get money.

Some people will not be persuaded by the facts. But it is safe to assume many of the people simply repeating talking points they have heard have never heard the facts about tort reform.