Medical Malpractice Accountability Plummets, While Malpractice Epidemic Continues Unabated

I’ve written extensively about medical malpractice myths, including posts about defensive medicine, the realities of malpractice litigation (in which it’s more likely that a negligent doctor will evade responsibility than it is that an undeserving patient will be compensated), and the tricks played to deny injured patients their legal rights, like concealing evidence and intimidating expert witnesses. Just last month I wrote about the hard data on malpractice lawsuits in Pennsylvania.

 

Why so much focus on malpractice law? Because it seems to be the area of plaintiffs’ litigation most heavily shrouded with myths and misunderstandings. Just last month, one of the New York Times’ bloggers, herself a medical doctor, began a column on the “disturbing” trend of doctors breaking the white coat code of silence by criticizing one another. She gave this example: a physician friend had been recently named in a lawsuit in which, they claim, “there were no discernible errors in the care she provided,” solely because a subsequent physician criticized the first physician, saying they were “shocked” by the care provided and that the patient “could have died.”

 

I could go on at length about how absurd that factual scenario was — a patient can’t file, much less win, a malpractice lawsuit with “no discernible error;” rather, the patient’s lawyer needs to prove malpractice by way of expert physician testimony — but there’s no need to do that. Just re-read that last paragraph: if the doctor-blogger and her friend really wanted to find the “discernible error,” they could have merely asked the second doctor why he or she was “shocked.”

 

Such is the low level of debate in the malpractice liability arena. A columnist or a doctor says something dumb, like asserting there’s “no discernible errors in the care” that the next doctor finds “shocking,” and patient advocates and plaintiff’s lawyers scramble to explain how the nitty-gritty of certificates of merits, damage caps, jury instructions, and the like make it impossible for cases to prevail unless they are “slam-dunk” cases with only the very worst outcomes for the patients.

 

Three stories from last week highlight many of the same issues I keep coming back to on this blog:

 

First, Capt. Chesley “Sully” Sullenberger — surely I don’t need to remind you who he is — has long been on a mission to reduce medical errors through basic improvements like increased use of checklists, and Politico just had a profile of him. Capt. Sully noted medical errors kill up to 200,000 patients a year, “the equivalent of 20 jetliners crashing per week,” and urged that “[w]e should reject the status quo now, not 20 years from now, because it’s failing us.” His work is a stark reminder that, if we have a “crisis” of anything, it is a crisis of medical malpractice, not a crisis of medical malpractice liability.

 

Second, Public Citizen released a report, covered by outlets like MedPageToday, noting that medical malpractice payments are at their lowest level ever, $3.14 billion, one-tenth of 1 percent (0.11 percent) of national health care costs. (Bear in mind, that number reflects the total of all money paid to patients and all money paid to plaintiff’s lawyers, because they’re paid out of the patient payments.) Is that because malpractice has been declining so rapidly? Maybe we should ask Capt. Sully.

 

The details are revealing: as MedPageToday writes, “malpractice payouts (unadjusted for inflation) declined 28.8% since 2003, the sum of premiums charged to physicians and hospitals (unadjusted for inflation) fell by only 9%, from $11.02 billion in 2003 to $10.04 billion in 2012.” In other words, for every three dollars we take away from patients’ compensation, insurance premiums go down only one dollar, with insurance companies pocketing the difference.

 

These figures also raise a simple social policy question: how much would you pay for a fund that took care of malpractice victims? Right now we pay less than $0.003 of each health care dollar, and only $0.001 of that goes to victims. If we made it $0.01 we would be able to cover the vast majority of the damage caused by malpractice — and perhaps give insurers, hospitals, and doctors an incentive to actually improve their care.

 

Third, a study done by the non-profit Center for Studying Health System Change (HSC) — the roots and funding of which are opaque — found, via a review of physician surveys, that physicians are totally clueless about malpractice law, and that they practice so-called “defensive medicine” just the same regardless of any tort reform in their state. All that hacking away at patients’ compensation over the past decade hasn’t done anything to reduce the supposed harm of “defensive medicine,” it has just made doctors, hospitals, and their insurers even less accountable for the needless harm caused by malpractice, and thus given them even less incentive to improve their care.

 

HSC interprets these results as a sign that doctors, despite being purely liability-avoiding actors, are too stupid to understand their own state’s tort laws, and HSC argues the study shows the need for “reassuring physicians that medical injuries can be resolved in less adversarial and stressful ways.”

 

Nonsense. I think the data show doctors are, by and large, smart and caring: they don’t order tests based on hypothetical speculations about malpractice liability, they order tests based upon their concerns about actually committing malpractice and hurting someone. Consider this: “patients with chest pain were more likely to be referred to the emergency department if their physician had a high or medium level of malpractice concern.” Well, yes. This conclusion is no different from the conclusion pilots are more likely to make emergency landings if they have a high or medium level of concern about crashing.

 

All of which is to say: there’s still plenty of malpractice out there, and all we’re doing is taking away patients’ rights to fair compensation and removing any incentive to fix the problem. When it’s not worth it for hospitals to learn how to use a checklist, you know you have a problem.

[Update: the same day I posted this, the Washington Post published an article by Vinay Prasad, chief fellow of medical oncology at the National Cancer Institute and the National Institutes of Health, arguing that the coronary artery stent that George W. Bush received earlier this week was unnecessary, excessive testing and treatment for reasons that have nothing to do with malpractice liability and "defensive medicine."]

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