What’s The Real Crisis in Medical Malpractice Law? The Threat to Patient Safety

Kia Franklin

What’s The Real Crisis in Medical Malpractice Law? The Threat to Patient Safety

This article in American Magazine promoting health courts replayed the same old arguments that we’ve heard before for adding insult to injury by obstructing access to courts for victims of medical malpractice. Marc Dittenhoefer’s blog on the subject is a clear and cogent critique of health courts, and a very good read. Additionally, here are my two cents about a few arguments presented in the article that I think are particularly bogus:

First, the article asserts that juries cannot be trusted with deciding malpractice cases because of the technical nature of the subject matter and because they’ll be too sympathetic to the patient.

BOGUS. For one thing, especially in malpractice cases, juries are fairly conservative about setting the award, and they take their job very seriously. They award verdicts in favor of malpractice plaintiffs in only 23% of the cases, according to the Center for Justice and Democracy. Marc Dittenhoefer wrote (in previously mentioned blog):

There has never been any showing that juries have characteristic problems with complex issues: we trust them to decide copyright and patent issues, matters of science and technology in commercial contexts, DNA and fingerprinting in criminal ones. We leave it to juries to decide whether there is enough reliable evidence on hand to sentence a person to death. Yet we can’t trust them to determine whether a doctor failed to live up to prevailing medical standards and whether a patient is entitled to money as a result?

To argue that juries can’t handle this type of information is to severely underestimate the intelligence of the American public. It is insulting that proponents of health courts would portray the general public as both the intended beneficiaries of the system and also as gullible, emotion-driven, and unable to handle the complexities of malpractice lawsuits. It also could lead us down a slippery slope to a system of complete arbitration for all legal disputes.

In order to sell health courts to the public, do we really have to be pegged as a bunch of dumb-dumbs? And do proponents of health courts really think the American public is also too dumb to know that health courts threaten our constitutional rights, namely the right to a jury trial? In at least 11 states, tort “reform” measures that are even less restrictive than health courts have been found to be in violation of the state constitutional right to a jury trial. And at least 12 other states, which have allowed less restrictive malpractice tort “reform,” have nonetheless been clear that removing malpractice claims from the province of the jury would violate the constitution.

Second, the article claims that the medical liability system is “a mess,” “highly inefficient” and gives unfair awards.

BOGUS. In terms of efficiency, the tort system already has set in place procedures for discovery, use of experts, investigating conflicts of interests, and the handling of other complex tasks that ensure fairness to parties to lawsuits. Health courts would have to duplicate this infrastructure, which means they’d have to pay for it and build it from scratch—that is, if they want to be fair and provide minimal procedural safeguards. This would not only be inefficient, since med mal claims are such a small percentage of tort claims and don’t require reinventing the wheel; it would also be needless.

The number of malpractice payments declined 15.4 percent between 1991 and 2005, and the average plaintiff’s annual payment went down 8 percent in the same timeframe (according to Public Citizen—Medical Malpractice Payment Trends 1991-2005). But proponents of health courts like to say that plaintiffs are milking the legal system dry with their med mal claims.

The article is correct when it says that the current system doles out unfair awards—it just has it wrong about who suffers from those unfair awards. Caps on non-economic damages completely rob wronged individuals of legitimate compensation for their pain and suffering. The article provides false information that these tort “reform” measures, “favored by the American Medical Association, do moderate malpractice premiums.” (My emphasis.) Actually, they don’t.

Health courts would only exacerbate the problem created by relatively lighter tort “reform” measures like the damage cap. Under the health courts scheme many deserving patients will never be compensated because of the flaws that will inevitably flow from the new legal standard they’d be required to meet. The article states that in health courts, claimants would need to demonstrate that “the injury would not have occurred if best practices had been followed.” Amy Widman points out that this popular “avoidability” standard has produced “non-trivial failure rate of claims” in other countries where health courts are in operation.

Finally, the article calls the current system “punitive” and says that it “encourages health professionals to hide mistakes instead of learn from them.”

BOGUS. To say that the legal system “encourages health professionals to hide mistakes” completely shifts responsibility for preventable medical injuries. It’s to say, it’s the civil justice system’s fault—not the fault of the folks who committed the mistakes and hid them; not the fault of their colleagues who kept quiet about it; and not the fault of medical licensing boards that fail to discipline the repeat offenders who are responsible for the largest share of malpractice events. (This Public Citizen study shows that just 5.9 percent of doctors have been responsible for 57.8 percent of the number of malpractice payments from 1991 to 2005, with each of these doctors making at least two payments. The vast majority of doctors – 82 percent – have never had a medical malpractice payment, according to the study.)

I am also intrigued by the lack of attention to the insurance industry from business-minded conservatives in this debate. We’ve seen time and again, study after study suggesting the stealth role the insurance industry is playing in creating the problem, shifting the debate, and lobbying for policies that will protect its profits, yet this problem is rarely addressed from the right. The proposal for health courts is a product of this failure/refusal to address what’s really going on. Medical malpractice tort “reform” is being pushed and promoted to the detriment of patients. The result is, literally, a matter of life and death. And that is the real crisis at hand.

Posted at 11:00 AM, Aug 27, 2007 in Permalink | Comments (1) | TrackBack (0)

Comments

Kia: Please, do not be shocked nor offended, but I agree with you. Here is my rebuttal to the above article, point by point.

This is a good review of the benefits of the health courts, and why the AMA endorses it. The AMA is now dominated by left wing ideologue staff, with elected officers as figureheads. The sitting president has had to rebut the AMA position in its newspaper on occasion.

The benefits include the following. Let's go through the problems of each talking point.

(1) "• Judges would be assisted by neutral expert witnesses and guided by evidence-based practice guidelines. "

a) The neutral experts would be paper shufflers from academia, especially left wing biased, Ivy schools, with half the clinical experience of the clinicians. The deal in med school is that you get half the time off from patient care to do research. They are verifiers, not leaders nor originators, seeking grants awarded only to safe proposals. b) The guidelines would take on the force of law in the hands of the academic paper shufflers, and their biased lawyer collaborators on the bench. They would be parsed word for word, like an entertainment contract. And lawyer gotcha would be the extent of justice.

The guidelines are like restatements, summaries of studies. The studies verify 5 years later what clinicians have been doing. By the time of publication, clinicians have moved on. Studies use parametric statistics (from the formula describing the bell shaped curve). These validly predict the fractions in the bigger population, and certain assumptions must be satisfied for their validity. Clinical care is a series of on-off, single case experiments, more like flipping coins. These are better described by the binomial distribution curve. So clinical care violates the assumptions of parametric statistics. Guidelines are not relevant until the number of patients seen exceeds 100's of patients.

Guidelines are garbage science per se. They will change every two or three years. They will change because eventually, a single desperate clinician violated them. That change helped a desperate patient. Everyone then imitated the change. It got studied, verified, and included in the new guidelines years later. So reliance of the health court on guideline risks crushing innovation with the force of law and punishment.
If people object to the cost of defensive medicine, perhaps as much as 10% of the health budget, wait till they get the guideline medicine bill. That will have been imposed on doctors at the point of the gun of the court, like laws and regulations. People will have to do things according to the book, written by clueless academics.

(2) "• Awards would be more consistent. ... Health courts could make awards based on a schedule of benefits, similar to workers’ compensation."

(3)"• More patients would be compensated. Under the present tort system, plaintiffs must prove negligence by a doctor or hospital. With health courts, claimants need only show that the injury would not have occurred if best practices had been followed. The standard would be whether the injury was avoidable or preventable, not whether a physician fell below the standard of care. The entire process would be far less adversarial."

2) and 3) This workmen's compensation comparison fits. The health court will increase the filing for mild and moderate injuries. Patients will game the court, as they do workmen's comp. Costs of litigation and compensation will explode from 2-3% of the health budget to something closer to far higher workmen's compensation rates. Other lawyer experimentation with no-fault schemes such as with car insurance failed to lower total costs.

(4)"• Although more claims would be filed, the average award would be considerably lower. That’s been the experience with the Kaiser Permanente system in California where 6 million patients have signed agreements to resolve malpractice disputes through arbitration rather than jury trials."
The total costs have not decreased.

(5) "• Perhaps most important, health courts would promote patient safety. Reporting information about injuries to a central data base would allow experts to determine why errors occur and how they can be prevented. The current punitive system encourages defendants to hide mistakes rather than examine them."
Where is the evidence that workmen's comp promoted worker safety? Safety improves with technology, and the realization of the costs of injury.

The problems with the current torts approach do not require scrapping the entire approach. They include a majority of weak cases, established biases against defendants, pro-litigation biased rent seeking lawyers on the bench failing to enforce the rules as they stand, failure of lawyer discipline to improve their product.

A tort approach ending the self-dealt immunity of the lawyers would improve their lawsuits, decrease costs from its current baseline, and not inflict the above damages on a stressed and overly expensive health system.