Op-ed: Injured patients deserve medical malpractice reform

A version of this op-ed was published on October 26th, 2009 in the USA Today.

President Obama has acknowledged that changes in the medical malpractice system must be considered with other health reforms, and recently ordered that pilot projects to improve the way we compensate injured patients be implemented.

Reforming medical liability has historically been a source of major contention. Physicians argue that the system is expensive, promotes multi-million dollar awards disproportionate to the injuries suffered, and encourages “defensive medicine” – the practice of ordering tests to avoid being sued.

Lawyers, on the other hand, say that suing doctors provides the only way for patients harmed by medical errors to seek financial redress, and dismiss the notion that malpractice costs and defensive medicine contribute substantially to health care spending.

But what’s overlooked in this argument is that the current liability system often does injured patients a disservice. And that’s the most important reason why medical malpractice reform is needed.

A study from The New England Journal of Medicine provides stark insight. Researchers found that nearly one in six cases involving patients injured from medical errors received no payment. For patients who did receive compensation, they waited an average of five years before their case was decided, with one-third of claims requiring six years or more to resolve. These are long waits for patients and their families, who are forced to endure the uncertainty of whether they will be compensated or not.

And with 54 cents of every dollar injured patients receive used to pay legal and administrative fees, the overhead costs clearly do not justify this level of inefficiency.

Furthermore, medical malpractice does little to promote patient safety. Although it’s been cited that medical errors account for close to 100,000 patient deaths annually, the majority are caused by failed systems or procedures, not physician negligence. Doctors and hospitals ideally should learn from mistakes in order to improve patient care, but that’s difficult to do when liability cases are resolved in an adversarial, often acrimonious, manner.

Indeed, in 2006, then Senator Barack Obama, alongside Hillary Rodham Clinton, wrote that the current system “does not promote open communication to improve patient safety,” and, “jeopardizes patient safety by creating an intimidating liability environment.”

There are many who advocate caps on malpractice awards as a solution, but this does little to fairly compensate patients more expediently, nor will it make the necessary improvements to patient safety. In Texas, for instance, a $250,000 cap on non-economic damages has made it more difficult for injured patients to seek compensation because lawyers find most claims too unprofitable to pursue.

Perhaps we should look abroad for other ideas.

The United States is one of the few countries in the world that uses a jury to decide instances of medical malpractice. Liability cases in the United Kingdom, Germany, and most of Canada use specially trained judges instead, who can not only decide cases more quickly, but also in a manner more reliable and consistent than a jury. These “health courts” will speed up the time it takes for injured patients to receive compensation. Additionally, according to Philip Howard, the chairman of the legal reform coalition Common Good, by implementing health courts, “information about each [malpractice] incident, would be compiled and disseminated so that doctors and hospitals could learn from their errors.”

Another consideration is a “no-fault” approach to deciding malpractice claims, used in countries like Sweden and New Zealand. Under such a system, legitimately injured patients are quickly compensated using payments based on the severity of injury without assigning blame to doctors. In fact, physicians in Sweden often work together with patients filling out the necessary forms, making them allies rather than adversaries. Such an initiative can also sharply reduce legal costs, with the money compensating more patients instead, while sparing physicians the ordeal of a malpractice trial.

Despite the disagreements surrounding the health reform debate, most feel that our health care system cannot continue to function under the status quo. If we care at all about the plight of injured patients, neither can our medical malpractice system.

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  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    Of course, injured patients deserve to be ‘made whole’. For this reason, I do not philosophically embrace caps on non-economic damages. Nevertheless, I supported them in Ohio as there was no other remedy available to us to stop the bleeding. I witnessed good physicians who were forced to retire early or leave the state. Those who support the status quo need to address the following facts.

    (1) The current medical malpractice system is tortures the medical profession. Most physicians drawn into the legal arena are innocent. Most are ultimately released, but this can take months or years of expense and anguish. Doesn’t this sound like fun? I wonder how this affects our doctor-patient relationships? The legal discovery process may be fair and reasonable in theory, but not so in practice
    (2) We are wasting tens of billions of dollars on defensive medicine. We can only guess at its extent, since there is no way to measure this.
    (3) Defensive medicine exposes our patients to unnecessary risks of medical complications, personal expense and anxiety.
    (4) Most victims of medical negligence are missed entirely and never compensated. Is this really the best we can do?

    Those who argue so passionately for reform of the health care system are usually mute on the medical malpractice situation. Which system is more dysfunctional?

  • http://www.drjshousecalls.blogspot.com Dr. Mary Johnson

    Barack Obama is a lawyer . . . married to a hospital administrator – a whole nuther story. Hillary Clinton is a lawyer . . . under whose husband’s admininstration (or should I say, “village”?) I took my beating completing a public service obligation. Most of the people proposing/writing the reform bills are lawyers.

    When they hold their Washington “hearings” for the cameras, the “victims” they parade through are the hand-picked/politically-correct victims of medical malpractice, or those dumped/abused by insurance companies.

    No one wants to hear from the doctors bogusly sued when trees were shook by the ambulance-chasers (after all, the doctors are “rich” and/or insured and can afford to fight off the personal/professional onslaught) . . . or the medical whistleblowers hosed by a government that has had its head determinedly in the sand for DECADES (why, they’re just “bitter wack-jobs” to think that the system should have actually protected them).

    It just doesn’t fit the White House’s very one-sided agenda, pseudo-socialist. It’s about buying votes.

    And God knows, our “advocary” and “patient safety” organizations – like the AMA and JCAHO – are so eager for “seat at the table” that they are not going to rock the status quo boat.

    Doctors are EVIL and greedy. Don’t you-all get it?

  • Impossible

    Will have to come back to this later… but say, why don’t we just ditch our constitution altogether. It just gets in the way of being like Europe.

  • Matt

    Yes, the goal of malpractice reform is to make sure more people get compensated and sooner. Doctors wax poetic about such things but it turns out all the legislation is just capping damages regardless of the fault and the damage. Caps don’t reduce the cost of elcare, barely reduce physician exposure, and have little to no effect on access to care. We have had them for three decades and nothing has changed.

    Spare us the sanctimonious speeches on how you care about patients injured bu malpractice and show us some action that is designed to do anything other than save insurers money in the hope they’ll pass a few crumbs along to you.

  • http://www.drjshousecalls.blogspot.com Dr. Mary Johnson

    Matthew, I think my point is that some of us have done a whole lot MORE than give “sanctimonious speeches” about how much we care about patients.

    We’ve intervened to STOP malpractice and been professionally brutalized for it.

    Have you/others like you done anything to put those stories front and center . . . to confront the physician & hospital “advocacy” organizations (not to mention the insurance companies) . . . that have pretended it doesn’t happen?

    I’ve been saying for YEARS now that malpractice reform is intricately interlaced with medical peer review reform. You cannot have one without the other.

    Show those of us who have stuck our necks out some action. And please spare me the sanctimonious speeches.

  • http://www.blog.greatzs.com ZMD

    The fact that lawyers don’t like caps on malpractice awards proves that they are in it for the money, not because they are so empathetic toward their clients’ plights. If they truly cared about their clients, they would take the cases no matter how little the potential reward, the way doctors treat patients regardless of their ability to pay.

  • Matt

    Why would it be wrong for lawyers to expect a return when they have to invest their own cash into the case? And doesn’t doctors’ support of caps prove they’re just interested in the money? Hoping the insurer will cut their premium?

    How many physicians or lawyers could stay in business if the lost money, and tens of thousands, with every patient/client? And certainly not all physicians will treat you regardless of your inability to pay. If you’re referring to EMTALA, that is a tradeoff the hospital makes in exchange for accepting govt cash. It’s not done out of the goodness of the providers heart. And that hospital bills the patient, puts collection companies on the case, and often sues and then garnishes wages to collect.

    Don’t break your arm patting yourself on the back.

  • Jenga

    Matt, I have yet to see you quote a single statistic that reinforces the status quo. If it is the best system in the world. BACK IT UP. Otherwise you can get back to putting your face on the sides of buses and billboards, because we all know where your real motivation lies and it ain’t helping patients. Kevin backed his op-ed with facts and statistics, the converse of his argument has yet to put up a single statistic. Until you do you are wasting everyone’s time.

  • SarahW

    Caps on malpractice awards punish the most egregiously injured. One needn’t be an attorney to see that problem.

  • Jenga

    Don’t cap the total amount. Cap the percentage an attorney can collect from the settlement. If you were truly for patients getting compensated, you wouldn’t object to them keeping a much higher percent of the award, and not the current 46 percent. Afterall they were injured not the attorney.

  • Matt

    Why would it be fair to only cap what one side can pay its advocates? It’s interesting how physicians who are always crying for the free market for themselves want the government to set the pay and get involved in the private contracts of others.

  • Matt

    ” Cap the percentage an attorney can collect from the settlement.”

    Why would you cap what one side can pay it’s attorneys but not the other side? Fairness?

    ” Kevin backed his op-ed with facts and statistics, the converse of his argument has yet to put up a single statistic.”

    Did you read the editorial? Kevin didn’t make an argument. He stated some criticisms (some legit, some not so much), and then mused about options, mostly discussing his own opinions on them, without any facts to bolster those opinions. He didn’t really tell if you if the options address his criticisms of our current system, he just mentioned they existed. What is there to argue about? I agree, there are other ways that this issue is addressed in the world. OK, now tell me how they address the issues with ours that were raised. Tell me how they would work with our healthcare system, given that we do not have the universal healthcare many other countries have. Until you do, you’re not making much of an argument for change.

    I thought Kevin’s post was pretty weak tea when it came to the issue. It didn’t tell you much. Which is about what you expect from a USA Today op-ed and given the space constraint.

    “Until you do you are wasting everyone’s time.”

    Then don’t read my posts. Easy solution to that problem, don’t you think?

  • Jenga

    54 percent is fair? It’s about the patients remember?
    You don’t get to ask questions until you answer mine. You are defending the status quo. The status quo sucks for patients and until you actually quote a metric that reinforces continuing the same bogus system any option should be on the table. NAME A RELEVANT STATISTIC. You can’t and you won’t.

  • Matt

    This is not a world where you make rules kid. Again though where do you get 54%? That’s not 54% of the award you understand?

    As for the stat, there isn’t one. Most malpractice doesn’t get compensated. I agree. In fact most people don’t even know that malpractice caused their injury when it does. I’m all for a proposal that compensates more people. And faster. So what should we do to make that happen?

  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    Ran across this headline on my morning internet scan. Will ‘paste’ here for viewing.

    The Atlanta Business Chronicle (11/6) reported that “seventy-four percent of American physicians believe they have less control over the way they practice medicine than they did five years ago, mostly due to medical malpractice litigation,” according to a survey released last week by Atlanta-based Jackson Healthcare. The survey found that “the majority, 85 percent, said the threat of medical malpractice litigation is their primary hindrance to practicing medicine as they see fit.”

  • Matt

    Surveys are, as a general rule, useless. Particularly in this area given how little understanding physicians have of their actual risk, and whether their actions lessen that risk.

    It turns out that people don’t like any system that might involve others judging their work and assessing it for errors. Did we need a survey to tell us that?

    One funny thing about that 74% stat is that a large number of physicians have received the “benefits” of tort reform in the last five years. Wonder why their satisfaction hasn’t increased. Yet another lie of the caps lobby.

    90% of American teenagers think that their curfew is too early. Have we learned anything about the merits of curfews for teenagers?

  • jenga

    You are giving lip service. Don’t kid us, you are for the status quo and you really don’t give a crap about patients. I knew you couldn’t do it, boy. Weak.

  • DocbLawg

    There are many states (the ones with tort reform) that include the following limitation for Plaintiffs’ attorneys who bring medical malpractice lawsuits. First, in some states, the Plaintiffs attorneys’ take from the lawsuit is on a graduated schedule; i.e. for the first $100K of recovery the attorney collects 33%, for the next $100K of recovery the attorney collects 30%, et seq. So the more that is recovered, the less the Plaintiffs attorney is allowed to recover. However, the clever Plaintiffs’ attorneys plead around the tort reform standards and add causes of action such as intentional torts, battery, fraud, all of which do not come under the protection of the tort reform statutes. Sometimes they are successful in extorting a settlement if the court finds that one of those actions falling outside tort reform actually sticks after litigating the issues through pre-trial motions.

    Another cost of litigation are the fees associated with hiring experts to support the Plaintiffs’ case, while it is true that these costs are often fronted by Plaintiffs’ counsel, those fees are deducted from the Plaintiffs’ recovery. Often times, it ends up being a 1/3% split between attorney fees, costs to litigate suit, and the remaining 1/3 to the Plaintiff in a recovery in a typical medical malpractice case.

    Next, the limitations on damages are usually limited to general damages or those for “pain and suffering”. It also includes caps on the value of a life in a wrongful death case. However for those who survive, and who are damaged by inability to work, function, etc., or “special damages” there are no caps on those damages that I know of. So if an attorney collects $300K for general damages and $700K for the special damages the Plaintiffs’ attorney is entitled to basing his take on the entire $1 million; maybe this is an area that needs to be changed such that much less money is taken from the special damage award. Of course the Plaintiffs’ bar would never agree!

    Any good Plaintiffs’ medical malpractice attorney will have a case evaluated by a qualified expert prior to taking on the case. It is true that med mal cases are often unsuccessful, the ones that are successful and make it to the papers are the cases that encourage filing of other cases that are less meritorious. Physician insurers are not as greedy as you would all like to think; they actually will resolve meritorious cases, with the physician’s consent, because they don’t want to pay a defense attorney to defend a case that they will lose anyway; that costs even more money. The cases I end up litigating are always supported by an expert review and the likelihood that the doctor will prevail at trial is usually 70% or better.

    I believe that injured parties should be compensated. However there are alot of stretching going on in terms of what an “injured party” is. Tort reform seems to balance the ability for an injured party to be compensated while providing insurance coverage to the doctors in the state. It is a good rather than bad thing.

  • Matt

    Again, I’m curious why all of you are so eager to keep one side from paying their attorneys whatever they want when you don’t want to cap the other side? If you were on the side that couldn’t pay your attorney whatever you wanted, would you think that was fair?

    “Tort reform seems to balance the ability for an injured party to be compensated while providing insurance coverage to the doctors in the state.”

    If damage caps were shown to affect the amount of coverage available, this might be a factor. Unfortunately, it hasn’t. The number of insurers in a state is not a function of damage caps, it’s a function of the broader economy.

    All damage caps do is limit the ability of those who don’t have much in economic damages (stay at home moms, children, elderly) to get to court. If that’s your goal, then damage caps are your thing. They also help make sure insurance companies, which are in the business of insuring risk, face less risk. I guess if you’re an insurance executive, that’s also a good thing. I am unaware of a constitutional right to insurer profits, though.

    If you’re interested in true justice, why are you capping the damages of those with the most devastating injuries? If you want more injured patients to get paid, why not put a floor on claims as well as a cap? The truth is, you don’t.

  • Matt

    “You are giving lip service. Don’t kid us, you are for the status quo.”

    And your proposal is. . . .? And addresses these criticisms how. . . ?

  • Eric

    How about holding lawyers equally financially responsible for failed cases that turned out not to have merit? Why not have cases certified as having merit by an expert panel before they are allowed to be filed, as has worked in other countries? All your posts seem to focus on how much lawyers should make…go figure…. God forbid a malpractice lawyer be responsible.

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