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March 24, 2004

Research counters claims of malpractice explosion

David has been much concerned of late about the litigious nature of American society, as am I. But I'm a little less willing to embrace wholesale "tort reform" that would severely limit lawsuits. (Why is it that conservatives, who so like privatizing things, resent the privatization of the enforcement of medical and product safety standards? That's basically what much maligned trial lawyers have done, and yes, some of them have gotten rich doing it, as privatizers always seem to do.)

This op-ed in USA Today marshalls some interesting facts about malpractice cases. At the very least, it's clear that these suits are not the only (or the major) factor driving healthcare costs up. And, as the sad case of my doctor proves, there are plenty of nice doctors out there doing really awful things.

Posted by jay at March 24, 2004 12:50 PM | TrackBack
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Well, even for an op-ed, we can't expect a reasoned argument from the writer, professor of a law school and author of a book "Why Lawsuits are Good for America". Most of the arguments delivered are refuted at overlawyered.

Points of fact notwithstanding, I see two fundamental errors in the piece. The first is the implicit assumption that the cost of medical care is the only issue at stake. The pervasive, and IMO far more serious problem with medical litigation is how it reduces the availability and quality of medical care. A $5M finding against a doctor who "failed" to perform a CAT scan on a child which "might" have prevented a subsequent disability mightn't materially affect the price of US healthcare as a whole, but it does affect us all when doctors, midwives, and other healthcare professionals withdraw from the field for fear of bankrupting litigation, or otherwise perform costly, unneccessary, and sometimes potentially harmful prodecures as "defensive medicine" to (hopefully) obviate their impact.

The other fundamental error is the author's implicit definition of "malpractice". The error is apparent in this sentence: Some malpractice is inevitable. Doctors are mortals; even the best make mistakes. What makes a "mistake" malpractice? In 20/20 hindsight, it might be viewed as a mistake that the doctor did not perform a CAT scan, but it may well be that with the data he had available at the time, and weighing the expense, opportunity cost, and time required, it was the right decision as made then. The following sentence is also misleading: "About 5% of physicians account for the majority of all medical malpractice claims." Don't forget that doctors specialize, and that certain practices (most notably, obstetrics) are particularly litigation-prone. It's no surprise that the bulk of litigation falls on the heads of doctors who specialize in those fields. In fact, it's fair to ask the question: if doctors are suffering repeated litigation, why haven't their licenses been revoked by the AMA? Because they're not negligent, perhaps?

Posted by: david on March 24, 2004 01:27 PM

I think it's too easy to point at anecdotes--of course there are problems. And you are right, this does contribute to coverage gaps. But you have to take the doctors' demonization with a grain of salt. 25 years ago, doctors were wealthier and more respected than lawyers. With managed care and other changes in the industry, doctors make much less money and are no longer treated as gods. Since they can't exactly complain about that, I think that lawyers have become a socially-acceptable scapegoat for doctors' frustrations.

I don't get how malpractice judgments paint doctors as any less "human" than people who ensure themselves against honest accidents or mistakes (like car insurance). Of course some of these mistakes are just unfortunate accidents--but that doesn't make the injured child's lifetime of care any less expensive. If you add the cost of institutional care, special education, and loss of anticipated wages, I don't think $5M is unreasonable.

And if we're going to debate specific anecdotes, please read the coverage of the $5M award linked to from think when parents bring in a child twice concerned about unusual behavior following a head injury, it is not unreasonable to question the doctors' judgment. What I'd really like to know is what kind of health plan the family was on--if it was an HMO, the doctor likely had a terribly misplaced incentive not to perform a costly test.

There have been plenty of abuses of the legal system (for example, the late stages of asbestos litigation). I sympathize with the thrust of and all of the thoughtful people who are concerned about this issue... but it continues to be used to distract from larger issues about healthcare, lax regulatory enforcement, etc. While you're probably right about the lawyer's bias, I honestly think I trust the average trial lawyer more than the right-wing standard-bearers for tort reform so draconian that it would leave penalties generally toothless--especially when plaintiffs are up against giant multinationals. Think, for a moment, about Microsoft's "big" $613M EU fine--that's two weeks' cash flow for the company, and a drop in the bucket of a $50B+ cash hoard. If we mandate a cap on lawsuits while companies consolidate into ever-larger entities (as well limit class-action suits and make the losing party pay, which the tort reformers want as well), citizens will have less and less ability to seek meaningful redress over time.

Posted by: jay on March 24, 2004 04:01 PM

To me, the most galling aspect of the so-called tort reform movement in its legislative (largely Republican-backed) form is the hypocrisy. This isn't so much a med mal issue, although the handwriting is on the wall. One of the chief proposals in the GOP "reform" effort is to push most mass tort litigation from state court into federal court. The idea being that federal court judges are less likely to be swayed by emotional arguments, etc. Now these are the same federal judges that the Republicans claim are such softies that they can't be trusted to determine what sentence fits the crime. The solution to that: have the Department of Justice "report" on those judges that vary from the sentencing guidelines too much, and haul the judges before Congress to 'splain. And of course these same lawmakers know that the federal courts are way backed up, because they hear from the judges every year about how many more judges are needed. To me, whether or not tort suits are the scourge they are claimed to be, the access to justice issue and the hypocrisy of the "reformers" tarnishes the whole movement.

Posted by: Seth on March 24, 2004 05:02 PM

It is a little late in the evening for me to defend my profession to the best of my abilities...BUT. As an attorney it is rather depressing to know that most of the country hates you-- while the other half desperately needs your assistance.

I can tell you from very personal experience that the "litigants" are flesh and blood people with needs. After my second year of law school I took a job at a firm after being promised I would work on tobacco litigation (plaintiffs' side). One day I called a client just to be told that he had died from his lung disease. Now we can debate tobacco litigation all night, but that guy had needs.

One of the most interesting articles I have read on this article was one that detailed a study (sorry, no link) showing that patients who were treated kindly and with respect were far less likely to sue. Sometimes people want their emotional needs met...and a simple apology can do that.

Wasn't it nice to have Richard Clarke apologize today? My advice to doctors who ignore little kids' the same.

Posted by: Marti on March 24, 2004 11:02 PM

Jay responds: "Of course some of these mistakes are just unfortunate accidents--but that doesn't make the injured child's lifetime of care any less expensive. If you add the cost of institutional care, special education, and loss of anticipated wages, I don't think $5M is unreasonable."

There's no doubt that when tragedies befall us, they can often be expensive. But who should pay? I ask: why the doctor? Why not the babysitter, whose abuse caused the injury in the first place? What if instead of beating the child, the babysitter had induced slow cyanide poisoning instead. Would the doctor have been any more or less liable in that situation had he not tested for poisoning?

When we start second-guessing the valid judgements of medical professionals in the courts, we're on a very dangerous path. You say the doctors are liable for not having performed a test which was unlikely, given the symptoms, to have been of benefit to the child. Yet, with hindsight, and only with hindsight, that's where the blame falls. The only alternative from the doctor's standpoint is that there be very clearly described policies: with these indications, this battery of tests must be performed. In fact, this is what's happening already, and expensive and sometimes dangerous tests are being performed unneccessarily in defence of potential litigation. Take it to the extreme, and the doctor has no free will at all in the treatment he offers. Personally, I'd prefer not to be treated by an automaton.

Marti hits the nail on the head: "the "litigants" are flesh and blood people with needs". When a loved one is injured, emotions run rampant, and we seek someone to blame for the injury. But sometimes, shit just happens. No-one is to blame.

When people launch these lawsuits, you always hear the parents say: "It's not about the money. It's about the principle of the thing. We just want them to pay for their mistakes." But that rings hollow when you look at who gets sued. In the aforementioned case, why did the parents sue the doctor, and not the babysitter? Because the doctors have deeper pockets, that's why. But the doctors have insurance, so what's the harm? More harm than we know.

Posted by: david on March 25, 2004 09:17 PM

My favorite paragraph in the op-ed reads: "What caused soaring medical malpractice insurance premiums? A key factor appears to have been the downturn in the stock market, only recently reversed, which reduced insurance company reserves and investment income. Medical malpractice insurance in four states was thrown into chaos when one of the largest insurers, The St. Paul Companies, stopped writing malpractice policies. But St. Paul's problems resulted largely from investment losses, including at least $70 million in Enron."

The author somehow failed to mention the following: In 2001 (the year it put its med mal business into runoff) St. Paul's underwriting loss on its healthcare business was $979 million. Underwriting loss does not include investment income or capital gains/losses. Somehow I don't think that a $70 million loss on an investment in Enron was the problem.

Posted by: Julie on April 3, 2004 09:28 PM
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