Justinian Lane

Guest Post About Medical Malpractice

Jeffrey Adams, an attorney in New York submitted the following as a guest post to this blog.  It was written earlier this year, so time references like “this week” might be a little off, but the rest of the data is sound. 

“First thing we do, let’s kill all the (personal injury) lawyers”, or something like that, William Shakespeare’s oft quoted and frequently misinterpreted line from Henry VI, was meant as a complement to judges and lawyers who champion justice, not as an attack on them.

Last month I discussed insurance company profits, and presented some examples of how consumers are safer and society is improved as a direct consequence of lawsuits. Yet many special interest groups maintain that the Country would be for the better without personal injury lawyers. As the health care debate escalates, as costs continue to spiral upward, and as society consumes more health care would tort “reform” lower health care costs? Topical question and, I submit, when the facts are presented, very easy to answer.

Recently on “This Week with George Stephanopoulos”, Senator Orrin Hatch, R. Utah, stated that “We’ve got to find some way of getting rid of the frivolous cases, and most of them are.” Without pause, Senator John Kerry, D. Massachusetts, chimed “And that’s doable, most definitely.” The actuarial consulting firm Towers Perrin has determined that malpractice costs (litigation, insurance, etc.) account for 1 to 1.5 percent of total medical costs ($1 – 1.50 of every $100). This has been adopted by the nonpartisan Congressional Budget Office (“CBO”). The CBO finds the argument that doctors practice “defensive medicine” or conduct extensive procedures as a consequence of malpractice litigation, at best, inconclusive.

A common argument of tort reformers is that doctors have to practice “defensive medicine”, physicians shunning certain specialties, and damage awards. The credible evidence strongly suggests that these arguments are all straw men. Defensive medicine is no different than defense driving. Applications to medical schools continue to rise. Damage awards increase as the economies of scale raise the threshold of baseline cases, but overall remain constant.

As many as 98,000 people die each year due to preventable medical errors. By comparison, each year approximately 44,000 women die due to breast cancer, 42,000 due to motor vehicle collisions, and 18,000 due to homicides. Lawsuits although arduous, are a necessary reality.

A frequently referenced study conducted by The Harvard Medical Practice had practicing physicians and nurses review 31,000 medical records. They concluded that 1 in 25 was injured by their doctor, and that 4 percent (1 in 25) sued. In another study, researchers from Harvard School of Public Health, Brigham and Women's Hospital, and the Harvard Risk Management Foundation examined 1,452 medical malpractice lawsuits. They found that over 90 percent of the claims showed evidence of medical injury and in 60 percent of these cases the injury resulted from physician wrongdoing.

Tort reformers claim that caps on pain and suffering awards will lower malpractice insurance rates, thereby reducing medical costs. The evidence strongly suggests otherwise. Many States that have caps have higher rates than States that do not; five States that recently passed caps had double digit rate increases; reductions in litigation in States with caps is negligible, because practically speaking most claims are never pursued; and is States with caps patient care is not has not been shown to have improved and some studies suggest the converse.

For a more comprehensive analysis please read Medical Liability, Malpractice Insurance and Health Care. ( ).

I think it fair to concede that the system must be improved upon. Denying access to Court, limiting recovery, and treating victims as pariah’s is not the answer. Tort reformers should not be allowed to harm the true victim a second time; this is antithetical to the American Civil Justice System, and an affront to fairness and decency.

Next month I look forward to discussing the more mundane subject of motor vehicle collisions.

The fact is that in New York malpractice lawsuits have not gone up over the last 12 years and payouts have gone down dramatically over the last three years according to the comprehensive study by the non-profit New York Public Interest Research Group. Yet malpractice premiums go up. Why? Don’t ask the lawyers - ask the insurance industry.

Jeffrey M. Adams

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Posted at 11:19 PM, Mar 16, 2010 in Medical Malpractice
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Here in California, medical malpractice insurance is what is termed "first dollar coverage." In other words, medical professionals are not given the opportunity to have a deductible of ANY size. Think how a no-deductible law would affect your premiums on your health, auto and home owners insurance. In an interview with an agent at a large med mal insurance broker in Southern California, your commentator was told, "We cannot offer a deductible because state requires first dollar coverage?" Now I ask you, who lobbied for that bill? Doctors, trial lawyers. Oh, I don't know, perhaps there was another interested party who sought the first dollar coverage provision, hmmmmmmmm. BTW, have inscos been playing both sides against the middle in your state? Decrying higher med mal premiums on the one hand while lobbying for first dollar coverage provisions in insurance codes or procedures on the other.

Posted by: Wooster Facher | March 17, 2010 10:11 PM