Why Garden-Variety Malpractice Reform Doesn’t Work
Using data from the most recent Health Tracking Physician Survey (2008), which asked physicians about their beliefs and attitudes towards malpractice risk, we found that 68% of physicians in the five states with the highest malpractice risk reported “ordering some tests or consultations simply to avoid the appearance of malpractice.” Yet 64% of physicians in the five states with the lowest malpractice risk reported doing the same thing.
From an op-ed in The Wall Street Journal. We have previously explained what will work.
A good malpractice law would allow doctors who are bad to get litigated out of business; but help good ones not become the victims of frivolous lawsuits. Moreover, it would allow doctors to sign a contractual agreement where people willing to pay the premiums for adverse-event insurance would get compensation for any adverse event.
Does this stem from the idea that if a doctor is not subscribing a medication or running a test then he or she is not doing their job? This mentality must be related to drug companies using direct advertising as part of a “pull” marketing scheme.
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I guess it is better to order a frivolous test and maintain plausible deniability than not order a test that really isn’t necessary and pay for it later because of some freak lawsuit.
So in order to avoid lawsuits, Doctors are ordering more tests, and spending more money… More reason for comprehensive tort reform!
If anything, this shows how dysfunctional malpractice laws and enforcement has become. Yes, doctors too often fear frivolous malpractice lawsuits, but the result is perhaps devious ways of avoiding such. Not too sure how to solve this problem, but I do know it is a problem that needs to be fixed if we want a reduction in health-care costs.
I’m spitballing here, but how’s this:
Whenever you sign up for a procedure, your surgeon pays (out of pocket) the expected value of a malpractice suit on that same procedure to a hospital insurance fund. For example, if 1 out of every 10,000 laparoscopic appendectomies end in a lawsuit, and the past 10 malpractice suits for this procedure have had a maximum awarded value of $1,000,000, then the expected lawsuit value for the surgery is $100. The doctor and the hospital have an incentive to reduce risk, as they get to keep a percentage of whatever money is paid below the maximum from each lawsuit.
Most of those who sit at the congress/senate are lawyers–that is the only reason why we don’t have tort reform–just think, even Kathleen Sebelius, The Secretary of the Department of Health and Human Services was director of the Kansas Trial Lawyers Association-from 1977–1987–Why would she even bring up the issue?
Malpractice reform is a solution looking for a problem. If a patient is injured because a doctor did not follow best practices or was willfully negligent then the patient should be able to recover damages for his losses. It should be up to juries to decide what those losses are, after hearing all the evidence.
I ask those, mainly doctors, who want malpractice reform if they would advocate the same for auto accidents. Would you want to create a system, for automobile insurance, where your ability to recover damages was impaired? Doctors, who often drive expensive autos and understand the high cost of medical care scoff at that idea. Yet far more frivolous cases, both in number and dollar value, are brought against auto insurance carriers, than professional liability carriers.
Jardinero1,
I am a doctor. I would be very much in favor of comprehensive reform of our civil liability system to include all civil suits, not just medical malpractice suits. And yes, in my opinion that should include auto accidents.
Here’s what I don’t favor. Artificial caps on non-economic damages of a few hundred thousand dollars. Unfortunately, that seems to be the main avenue of tort reform most reformers pursue. It is stupid in my opinion.
What I would favor would be a multifaceted approach.
1. Eliminate contingency fees charged by plaintiff’s attorneys. This whole “It won’t cost you anything unless we win” is basically an incentive that invites frivolous suits. Too many plaintiff’s attorney’s use this as an advertising gimmick to attact clients. They then file pretty questionable suits demanding exhorbitant amounts in damages, with the real goal not being to win in court, but rather to simply make the potential penalty for loss so high that the defendents will decide to settle out of court rather than face an unpredictable jury. Eliminate contingency fees so that if a person files a suit, they know that it will potentially cost them something if they lose. That way, they will be less inclined to file a suit unless they really feel like they have a legitimate case.
2. Eliminate all non-economic damage awards. If you can genuinely show economic damages in the form of increased medical costs, lost wages, replacement of a wrecked car, attorney’s fees, or whatever, then you should absolutely be able to recover 100% of that. Beyond that however, you shouldn’t get a dime. I know that sounds harsh. I know that the rationale is that somehow if you get awarded several million dollars for “pain and suffering” it’ll somehow make all that pain and suffering go away, but I personally think that’s a bunch of nonesense. The pain doesn’t go away, no matter how many dollars you throw at it. While it might in theory do something to alleviate an individual’s pain somewhat, the greater harm caused to society as a whole by our out of control liability system far outweigh’s any theoretical pain relief to the individual. Does this mean that I’m just a heartless person who doesn’t care about the pain my fellow citizens suffer? No, it doesn’t. The way I look at it however is that life is full of suffering. Sometimes it’s just not fair. It’s a sad fact of existence that sometimes we have to suffer unfairly, and sometimes that suffering is demanded of the individual for the greater good of society. There are millions of grave markers in military graveyards around the world that stand testament to this principle. All the money in the world won’t relieve the pain and suffering buried at Normandy. In our vain attemtpt to somehow make all the individual’s pain magically go away through big lawsuit payouts, we end up causing a heck of a lot more suffering in a heck of a lot more people. This should end. It should end now.
But what about the concept of punitive damages? By awarding non-economic damages, aren’t we punishing incompetence, malevolence, and negligence? Is there no place for this in our courtrooms? Of course there is. If society feels that defendents should face such economic penalties to discourage incompetence, malevolence and negligence, then that is not unreasonable. If some doctor goes into the operating room drunk and takes off the wrong leg, then he should absolutely be punished. It would be entirely reasonable for a judge and/or medical licensing board to hit him with stiff penalties including potentially huge monetary fines, loss of license, and even jail time. Such punishment and sanctions however should be done by and on the behalf of society at large. Any monies collected should go into the public coffers. There is absolutely no reason why punitive damages such as this should go into the hands of individual plaintiffs (or more acurately into the hands of their attorneys).
3. While parties should absolutely be able to recover demonstrable economic damages, this should be a two-way street. The side losing in any civil suit, should be required to compensate the winning side for all economic losses included lost wages, attorney’s fees, etc. You want to sue somebody, you better be sure you have a genuine case, because if it goes to court and your suit if frivolous, you could be stuck paying the defendant for his lost time and wages going to court as well as his attorney’s fees. Right now, the system is too one-sided and stacked in favor of the plaintiff’s.
Ours is a predatory system in which plaintiff’s have very little to lose by going after anyone they can for any sort of frivolous suit.
You say that reform is a solution looking for a problem. That makes a cute soundbite, but when over 60% of doctors in states with the lowest malpractice risk feel the need to order unneccesary “Cover your ass” tests and procedures, that’s a problem. I wonder what happens to those percentages if one polls doctors just across the border in Canada. Hmmm.
drsam, your solution rests on twin bedrocks that most lawsuits are frivolous and that a lawsuit is really easy to file. Neither premise is true so your proposed solutions are unnecessary.
Even the most ruthless PI lawyer is not going to take a case unless there actually appears to be injury. There can be no recovery if there was no loss in the first place. If there is an injury then the case is not frivolous.
Tort law and jury trials are very effective methods for establishing fault and compensation for loss. Jurors are not as gullible or stupid as the tort reformers make them out to be. Most tort “reform” is about putting caps on recovery and preventing juries from making that determination after both sides have presented their version of the facts. That sounds fine until someone faces an injury with lifetime expenses that far exceed the cap or what a jury would have awarded.
drsam, One last thing, if doctors order unnecessary tests, there is usually more than one reason for the orders. At least, that is what I gleaned from the survey; since whether the doctor ordered unnecessary tests hardly varied between low risk states and high risk states. Thus, unnecessary tests are a problem with the doctors and for the doctors, not the tort bar.
Jardinero1,
I don’t believe that I wrote or implied that most lawsuits are frivolous. That said, when medical malpractice cases go to court, the jury rules in favor of the defendant roughly 75% of the time, whereas in civil liability cases that are not medical, it’s roughly 50%. Why do you suppose there is such a discrepancy?
I also don’t believe that I wrote or implied that filing a suit is “really easy”. That said, in most (perhaps all) jurisdictions, filing a civil suit involves filling out some forms and paying a filing fee of a few hundred bucks to the court.
You said, “Even the most ruthless PI lawyer is not going to take a case unless there actually appears to be injury. There can be no recovery if there was no loss in the first place.”
As mentioned in my first post, the actual goal with many lawsuits is to never go to court in the first place (After all, in med-mal cases that go to court, there is a 75% chance the plaintiff will lose). The actual goal is to simply file a suit demanding an exorbitant amount of money. Set the demand so high that to loose a suit would be financially devastating for the defendant. That way, even if no actual malpractice occurred, there is a tremendously strong incentive for the defense to settle out of court, rather than gamble on a jury outcome. The potential financial loss for the defense is too great to risk, even if the defendant knows he/she is in the right. The only thing the plaintiff stands to loose is a little bit of their time, because as the advertisements all say “It won’t cost you a thing unless we win.” For a system that is supposed to be fair, it seems odd that one party (the defendant) stands to lose millions if defeated, whereas the other party stands to lose nothing if defeated, but stands to gain millions if victorious. The plaintiff has nothing to lose, and everything to gain. Therefore, they are entirely incentivized to file suits, whether there is any real injury or not.
Regarding your assertion that even the most aggressive PI attorney won’t file suit unless there actually appears to be injury, I would opine that the PI attorney, who also stands to gain (a large percentage of) millions if victorious or if there is an out of court settlement, but only stands to lose some time and a few hundred bucks in filing fees if defeated, is similarly incentivized to file suits regardless of how strong the case actually appears to be.
You said, “Jurors are not as gullible or stupid as the tort reformers make them out to be. Most tort “reform” is about putting caps on recovery and preventing juries from making that determination after both sides have presented their version of the facts. That sounds fine until someone faces an injury with lifetime expenses that far exceed the cap or what a jury would have awarded.”
I don’t believe I wrote or implied that jurors are stupid or gullible. Nor did I write anything supporting any sort of caps on demonstrable economic damages, which would include ongoing lifetime expenses. That said, it is interesting to me that in the same paragraph in which you defend the intelligence of juries, you go on to say “…until someone faces an injury with lifetime expenses that far exceed [the cap or] what a jury would have awarded.” That last statement seems to imply that you believe perhaps juries aren’t so brilliant after all since even without caps, they do a poor job of awarding adequate damages to cover the defendant’s lifetime expenses.
You said, ” if doctors order unnecessary tests, there is usually more than one reason for the orders. At least, that is what I gleaned from the survey; since whether the doctor ordered unnecessary tests hardly varied between low risk states and high risk states.”
I would propose that perhaps this is due to the fact that even in (relatively) low-risk states, there is still risk of a financially devastating lawsuit and it is still an unacceptably high risk. Again, I’d be very interested in seeing a similar survey conducted amongst physicians practicing in Canada. Compared to virtually every other country on Earth, even our so-called “Low-risk” states are absurdly risky.
We absolutely do need to have a civil liability system in this country so that wronged parties have recourse to recover damages. That system needs to be fair and balanced however. In the U.S., it currently is massively unfair and out of balance. This needs to be fixed already.
Cheers,
Sam
drsam, We will disagree on the meaning of frivolous. My only thought on your report of defendant’s prevailing seventy five percent of the time is that the system is plainly biased in favor of defendants. If the system needs tweaking, then I would suggest the tweaking should shift the balance back towards the plaintiffs.