Myths about Medical Malpractice: Part 2 Crisis or Hoax?

Myths about Medical Malpractice: Part 2 Crisis or Hoax?

56
SHARE

Conservatives call it the “malpractice crisis.” Public Citizen, a liberal non-profit consumer organization based in Washington D.C., calls it “The Great Medical Malpractice Hoax.”

No doubt you have read that ambulance-chasing lawyers have escalated their assault on health care providers, and that as a result, malpractice insurance premiums have been levitating, along with malpractice suits, further hiking the cost of medical care.

Various solutions have been floated, including “caps” on compensation for pain and suffering; “health courts” where expert judges replace juries; immunity for doctors who follow “best practice guidelines;” and “full disclosure” policies which urge doctors and hospitals to move quickly to disclose errors, apologize, and offer compensation.

In the end, the best solutions would make malpractice reform part of heath care reform. Our malpractice system should be redesigned to reduce medical mistakes, fully compensate patients who are injured by human error, reward doctors and hospitals that disclose errors, and penalize those that try to “cover up.” When it comes to the cost of malpractice, reform should slash the exorbitant administrative costs built into an adversarial process that moves at a snail’s pace, while subjecting both plaintiffs and defendants to what a recent report from the American Enterprise Institute rightly describes as “inhumane.”


Myth: Limit Awards, and We Can Eliminate Thousands of Frivolous Suits

“Put a lid on how much a jury can pay a patient for pain and suffering,” conservatives say, “and watch the suits begin to disappear.” A bill that would do just that—and much more—is now wending its way through the House. Twenty-eight states already have capped compensation for “non-economic damages” (usually at $250,000) though in eight, a state’s Supreme Court has ruled such limits unconstitutional.)

Best of all, according to those who favor tort reform, limits on damages deter avaricious attorneys who, as everyone knows, take on baseless cases, hoping that one day they’ll look in the mirror and see John Edwards.

As is so often the case, the conventional wisdom is wrong. Attorneys rarely bring a case unless a patient was seriously injured and there is evidence of negligence. The costs of bringing a suit are too high, and the odds of losing too great to do otherwise. (As noted in Part 1 of this post, research reveals that juries tend to favor hospitals and physicians, even when plaintiffs have  what independent physicians describe as “strong evidence.”)

In April, the American Enterprise Institute for Public Policy Research (AEI) released a working paper which pulls no punches as it rejects the conservative wisdom on capping awards. The report is startling:  AEI is a conservative think tank. Nevertheless, the University of Illinois’ David A. Hyman J.D. M.D.  and William M. Sage, J.D. M.D. of the University of Texas at Austin write: While “critics of the tort system argue that it is essentially random, using language like ‘jackpot justice’ and ‘lawsuit lottery’ to describe the manner in which the system allocates payments,” in fact “the medical malpractice system gets to the ‘right’ result most (but certainly not all) of the time. . . Studies using experts to review medical records for evidence of error find that claimants who received substandard care usually obtained compensation, that claimants who received proper care generally did not, and that claimants whose care quality was uncertain wound up in between.”

As Hyman pointed out in the Vanderbilt Law Review five years ago: “We have empirical studies of the medical malpractice liability system that now constitute a substantial body of research.” They “depict a system that is stable and predictable and that sorts valid from invalid claims reasonably well.”

This  confirms what physician-reviewers at Harvard’s School of Public Health concluded in a 2006 study of malpractice claims that I described in Part 1 of this post. After poring over claims involving approximately 33,000 physicians, 61 acute care hospitals and 428 outpatient facilities in four regions of the U.S, they wrote: “Portraits of a malpractice system that is stricken with frivolous litigation are overblown. . .  Our findings suggest that moves to curb frivolous litigation, if successful, will have a relatively limited effect on the caseload and costs of litigation.”  Because this was such a large study that relied on physicians to investigate claims in their own specialty, it has set a gold standard for malpractice reviews.

Yet, despite abundant evidence to the contrary, conservatives continue to talk about “opportunistic lawyers” and “phony” suits in a debate over medical malpractice that Hyman and Sage point out in their paper for the American Enterprise Institute, “can often seem theological.” Indeed, as they describe it, the battle is rooted in ideology, and argued with a nearly religious fervor: “On one side are those conservatives and doctors who have no doubt that frivolous lawsuits and Democratic politicians beholden to trial lawyers are the reasons American health care is so expensive. On the other side are those liberals who see malpractice reform as another Republican conspiracy to shift attention from the real problem.”

As for attorneys who bring baseless suits, Hyman and Age acknowledge that “Such over-claiming” may be  common in the initial stages of a suit, but for understandable reasons: “It is important to note that saying a claim is non-meritorious does not necessarily make it ‘frivolous.’ Information is often difficult to obtain following a medical injury, leaving malpractice lawyers to serve a necessary (albeit inefficient) investigatory function. . .. Focusing on claims that are filed but later dropped or dismissed obscures the larger reality,” they add, “that most injured patients do not file claims even when negligence caused them harm.”

The Harvard researchers agree; hospitals and doctors stonewall injured patients: “Our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts and sharing of information that litigation triggers.”  Often, when they have more information, plaintiffs  drop the case.

Of course, patients should not have to sue to find out “what happened.” Here, Hyman and Sage suggest that, under health care reform, if ” patient safety procedures within provider organizations improve, and the results of post-injury investigations are shared promptly with patients and their families”  there should be less need for the legal system to assume this [fact-finding] role.” This is, of course, a crucial “if.”         

Myth: Caps Are Needed to Rein In “Runaway Juries”

Those who call for caps on damages often claim that we need to chasten lay juries who, heady with a rare moment of power, hand out multi-million-dollar awards. In truth, Robin Hood pay-outs are rare. In 2005, for example, million-dollar verdicts accounted for less than 3 percent of all payments.

Commenting on Health Beat, Anne Polta writes: “High-profile, multimillion-dollar cases tend to grab the public’s attention. From there, it’s a short leap to assuming these types of cases are common. But this is anecdotal at best, and the statistics don’t back this up. Maybe the discussion about tort reform would be less volatile if the emphasis was on fact rather than emotion.”

In its report on “The Great Medical Malpractice Hoax” Public Citizen confirms what Polta says about the stats: “The number of payments for judgments of $1 million or more is tiny — never exceeding one-half of one percent of the annual total number of malpractice payments from 1991 through 2005.  In 2005, the average award for a ‘significant permanent injury’ was just $215,000, while the compensation for a ‘major permanent injury’ was $315,000.” (These are the categories used by the National Practitioner Data Bank, or NPDB.)  In cases where “the patient became a ‘quadriplegic, brain damaged, or in need of lifelong care,’” the median award hit $635,000—and this was the category where compensation was highest. When the patient died as a result of a medical mistake, awards averaged only $195,000.

How could compensation be so low when a medical mistake proves fatal? Typically, in these cases, the patient is over 65, and retired. As a result, courts do not pay for lost earnings. The extra ten years that a grandfather might have lived, playing with his grandchildren, are not deemed nearly as valuable as ten years that he might have spent in the workforce. (A grandchild who believes that her grandfather was “the only person in the world who understood me” might disagree, but in a society that values human beings in terms of how much they earn, she doesn’t have a vote.)

Myth: Caps Bring Down the Cost of Malpractice Insurance

Perhaps the strongest argument for tort reform is that limits on awards will reduce malpractice premiums. But even here, the evidence is, at best, spotty. The most recent research reveals wide regional variation in malpractice premiums even within a state that has enacted strict laws limiting payouts. Premiums for malpractice may be 2 or 3 times higher in one part of the state than in another.
“This variation gets chalked up to differences in judges and plaintiffs’ attorneys, as well as the relative propensity of local residents to either sue or hand out big jury awards,” explains Robert Lowes in an article published in Medscape in November of 2010. “California is a poster child for tort reform because of its $250,000 cap on non-economic damages in malpractice cases. But one carrier charges obstetrician/gynecologists a base rate of $89,953 if they practice in Los Angeles and Orange counties, but only $30,463 if they practice in the more northerly counties of San Mateo, Santa Clara, Santa Cruz, Fresno, and Monterey, according to Medical Liability Monitor (MLM).

“The same pattern emerges in Texas” he adds. “Granted, statewide, malpractice premiums have decreased on average by 27.6%, but premiums for general surgeons are more than twice as high in Hidalgo County ($92,242) as they are in Potter County ($44,434).”

In their working paper for the American Enterprise Institute Hyman and Sage confirm that “malpractice premiums vary by a physician’s specialty and type of practice and the county [not the state] in which he or she works.”

Lowes concludes: “Even when tort reform does tame malpractice premiums, it does not eliminate wide variations within a state.” He quotes Lawrence Smarr, president of the Physician Insurers Association, a group of doctor-owned or operated companies that insure 60 percent of the nation’s physicians. “Tort reform doesn’t change [the local] culture.”

This group would have every reason to support caps. After all these are the companies that shell out the awards. But, to his credit, Smarr refrains from exaggerating the potential benefits of putting a lid on compensation. (It is also worth noting that close to 2/3 of U.S. doctors are paying malpractice premiums to insurers owned by fellow-physicians. Conceivably, doctors should shift their focus from limiting awards for a patient’s pain and suffering to capping these insurers’ profits which, at least in some cases, have reached an all-time high.)

Myth:  Fear of Malpractice Suits Drives Overtreatment

Extensive research suggests that roughly one-third of our health care dollars are squandered on unnecessary tests and treatments. Many physicians acknowledge that they over treat, but, they say, it is only because they agree with Justice Brandeis: “There are two things to fear in life: death and litigation.” If compensation were capped, some conservatives argue, doctors will no longer feel such pressure to practice “defensive medicine.”

In truth, there are many reasons why a doctor might order an extra test, recommend a more aggressive procedure, or hospitalize a patient who doesn’t really need to be there:

•    The case reminds him of another case that went sour, years ago, and he never did totally understand why. . .
•    The patient is someone he has known for years and likes very much. He just wants to be extra-careful.
•    The patient is someone who he has known for years, and dislikes intensely. But he knows that if he does not give in to her demands for a prescription or a test she will never stop talking. He just wants to get her out of his office.
•      If the patient is at home, he will have to field anxious late-night phone calls from her husband. If she is in the hospital, the nurses will take care of her.

These are just a few of the reasons why U.S. doctors might over treat. We should also recognize that, in this country, medical training reinforces the notion that they should be “thorough” and “do everything possible. The resident who orders that extra test and makes the diagnosis that no one else thought of is praised. Every doctor cherishes those moments when he “catches” something that most physicians would have missed—and perhaps saves a life.

Meanwhile, in medical school, physicians are rarely taught to worry about the cost of health care. They are told to do their best by each patient, one patient at a time, providing every service available, and doing “everything possible.” Many doctors feel that the fact this nation spends so much more on health care than any other developed nation in the world is not their problem. They are not economists. They are not politicians. They are physicians.  Even today, probably the majority of physicians still would say that it’s up to someone else to worry about unnecessary hospitalizations and tests—though doctors are becoming more aware that a needless hospital stay (or even an MRI) exposes a patient to unnecessary risks.

Many physicians believe that their duty is to focus on the individual and her family, not the price society will pay for a treatment, even if the physician knows that it will provide neither comfort nor cure. The cancer patient’s relatives want her in the ICU. Period. No doubt, death would come more gently if she spent her final weeks at home, with palliative care, or in a hospice. But the doctor doesn’t have the time to try to persuade her family that this final incarceration in an ICU is both futile and cruel. (Even if he had the time, he wouldn’t be compensated for that frustrating hour of wrangling with relatives.) Nor is he paid to think about how her stay in the ICU may ultimately contribute to Medicare’s insolvency.

Finally, critics of our health care system suggest that “fee-for-service payment” provides a perverse financial incentive to “do more.” To this, a doctor might reply:  “Do I make money on those extra tests? Sure. But I’m just doing my job. I have a right to be paid for my work. And let me tell you, I don’t want to be sued for missing a diagnosis.”

In the end, no one can untangle the many reasons why a doctor winds up over-treating. Even the physician himself would be hard-pressed to assign a weight to each of a half dozen motives driving his decision.

Some doctors confide that only another physician would understand how complicated these decisions are. So when responding to a layperson’s query about “defensive medicine” it’s easier just to say: “Do I sometimes over-treat? Sure. Maybe 15 percent of the time. I’m afraid of being sued.”

Myth:  Caps on Awards Would Make Health Care More Affordable

The conventional wisdom, at least in some quarters, is that if we put a lid on awards for pain and suffering, plaintiffs’ attorneys wouldn’t be so eager to pursue these claims. Thus, we wouldn’t have to waste billions on malpractice trials and settlements. And because doctors would have less to fear, they would be less likely to over treat. Voila, we could pare billions from the nation’s health care bill.
Begin with the belief that caps would deter the ambulance-chasers. Conservatives make the argument that since plaintiff’s attorney usually work on contingency, (taking 30% or 35% of the award if they win), they will be less likely to take on cases if pay-outs don’t exceed $250,000.  The truth is that trial lawyers already are very wary of taking any but the strongest cases.

Plaintiff’s attorneys are not chasing business; they are running away from it. Sage and Hyman explain, “malpractice claims are protracted and expensive to litigate, a case yielding less than $150,000 in recoverable damages is often a bad business proposition for a potential plaintiff’s counsel.”  As noted above, even in states where there are no limits on damages, awards are just not that large: Nationwide, in 2005, the average award for a “significant permanent injury” was $215,000. If the patient died as a result of negligence, average compensation was just $185,000.

Thus “plaintiffs’ attorneys screen malpractice cases carefully and reject the overwhelming majority of those who request representation,” report Sage and Hyman, citing empirical evidence showing that trial lawyers themselves are “Holding Back the Floodtides” of suits.

Conservatives like to hold up Texas as an example of a state where tough tort reform discourages lawsuits. After Texas clamped down on compensation in 2003, the number of malpractice suits filed over the next five years reportedly dropped by some 60 percent. But over that span, fewer than 800 claims were filed, resulting in less than 160 payouts. In other words, in absolute numbers the change was not that great. This is because only a tiny percentage of injured patients seek compensation. At the margin, caps could shave the number of suits by making some cases less attractive for trial lawyers to take on, but limits on damages won’t substantially reduce the total number of cases.

Moreover, as Consumer Reports Health.Org points out, the amount of money that could be saved, even if we cut malpractice claims in half nationwide, is not nearly as large as tort reformers claim: “The direct cost of malpractice insurance  premiums and court verdicts, plus the cost of defensive medicine, together account for less than 2 percent of overall health-care spending, according to a 2009 study by the non-partisan Congressional Budget Office, which came to a similar conclusion when it reviewed the idea during the Bush administration. Tort reform might cut those costs by 0.5 percent, saving roughly $11 billion of a total $2.5 trillion annually—barely making a dent in overall health care costs.”

But wouldn’t health care bills shrink if tort reform persuaded doctors that they don’t need to order those extra tests? There is no evidence that doctors practice more conservative medicine in states such as Texas.  Just as a propensity to sue is grounded in local culture, a tendency to over treat finds its roots in a local medical culture—as Dr. Atul Gawande showed in his now famous New Yorker investigation of two towns in Texas.

Writing for the American Enterprise Institute, Sage and Hyman point to “a recent RAND study of hospital safety and malpractice claims at the county level in California,” which “found a strong correlation between reduced adverse events and lower malpractice claim rates.” In other words, in places where there are fewer patient injuries, there are fewer malpractice claims. Safer hospitals—that is what makes the difference.

Meanwhile, caps don’t persuade doctors that they can forego defensive medicine. When doctors talk about their fear of lawsuits, they make it clear that what they dread is the psychological ordeal, as well as the possible damage to their reputations. Whether or not awards for pain and suffering are capped at $250,000 or $500,000 is irrelevant. The money will not come out of the physician’s pocket: the insurer pays. Even if there is no payment to the plaintiff, it is the experience of being accused that is harrowing.

Finally, as Hyman and Sage observe in their working paper for the American Enterprise Institute (AEI) the argument that tort reform would reduce how much we, as a nation, spend on health care is “totally wrong.” If we cap damages, they explain, “the resulting reduction in insurance payouts and malpractice premiums is largely a redistributive transfer; Tort damages transfer wealth from health care providers [through insurers] to injured patients. Reducing those awards will transfer wealth in the opposite direction, but does not by itself constitute net ‘savings.’ If reducing awards also reduces injuries, social savings will result, but there is no reason to believe that will happen.”

Again, keep in mind that AEI is a conservative think tank and that Davd A. Hyman is an adjunct scholar at the libertarian Cato Institute. They are not making these arguments in order to advance a liberal agenda. They are saying these thing because they are true.

Myth: “Every Patient is a Potential Plaintiff”

Politicians who peddle fear like to raise the specter of hard-working, dedicated doctors losing not just their reputation, but their homes, and their life savings, because for one moment, their concentration lapsed. After a lifetime of serving patients, they make a single mistake.
Once again, there is virtually no basis in reality for this claim: “In the current system, little direct compensation is available to claimants beyond what is provided by physicians’ liability insurance,” Hyman and Sage report. “Whether because of asset protection schemes, jury discomfort with ‘blood money,’ or high transaction costs of collection, injured patients rarely received compensation from physicians’ personal funds.”

They cite a 2008 analysis using data collected by the Texas Department of Insurance, examining all insured medical malpractice claims against physicians between 1990 and 2003 (before Texas enacted a cap): “Contrary to common claims in policy debates and in the health policy literature,” limits on what an insurance policy will pay out “appear to act as de facto caps on recoveries.” Judges and juries just don’t award more than the physician’s insurance will cover.

Yet even doctors who understand that they won’t be bankrupted by a greedy attorney are inclined to believe that they are in constant danger of being sued.  “From day one of medical school, you are warned to view every patient as a potential plaintiff,” wrote one physician, commenting on Part 1 of this post.

One can only imagine how such paranoia undermines the doctor-patient relationship—and  it is not grounded in reality. Over the course of a career, the AMA reports, only 42% of doctors are ever sued. In her March post Naomi quoted Louise Marie Roth, an associate professor of sociology at the University of Arizona who is studying the relationship between malpractice litigation and obstetric practice: “The actual risk of getting sued is low,” says Roth. “Practitioner’s fears of litigation are exaggerated,” she observes, and “an unfounded fear of malpractice litigation leads to defensive practices that are totally out of proportion to the actual risk.”

The average doctor stands less than a 50 percent chance of being sued just once in his career. And odds are that he will win, even if the plaintiff was seriously injured and can present solid evidence. Granted, just being dragged into litigation is a horrible experience. But the notion that every patient represents a serious financial threat would suggest that most physicians should expect to be sued multiple times over the course of a career. And that just isn’t true.

Only a tiny cadre of physicians inspire more than one suit and wind up making repeated payments.  Public Citizen reports that from 1991 to 2005, just 5.9 percent of doctors were responsible for 57.8 percent of all malpractice payments. Each of these doctors made at least two payments.  Over the same span 2.3 percent of doctors made three or more malpractice payments, and were responsible for 32.8 percent of all pay-outs. Meanwhile, just 1.1 percent of doctors, were responsible for 20.2 percent of all pay-outs, each making four or more payments. Perhaps some of these physicians were working in specialties where they are likely to be sued (neurology, ob-gyn) and were brave enough to take extraordinarily difficult cases. But many are cowboys, who practice extremely aggressive medicine without informing patients about the risks. Others are physicians who are impaired in one way or another, yet continue to practice.

The tragedy is that state medical boards and health care institutions do so little to investigate these doctors. According to Public Citizen’s analysis of NPDB data, disciplinary actions such as license suspension or revocation are shockingly low:

• Only 8.61 percent of doctors who made two or more malpractice payments were disciplined by their state board.
• Only 11.71 percent of doctors who made three or more malpractice payments were disciplined by their state board.
• Only 14.75 percent of doctors who made four or more malpractice payments were disciplined by their state board.
• “Only 33.26 percent of doctors who made 10 or more malpractice payments were disciplined by their state board – meaning that two-thirds of doctors in this group of egregious repeat offenders were not disciplined at all.” Empirical  evidence suggests that many of these physicians enjoy enough wealth, power and clout with local hospitals [because they are “rainmakers”] to evade regulators. Others simply move from one state to another.

This is the true “malpractice crisis.”

Myth: Americans Patients Are Extraordinarily Litigious

Comparing how often patients are harmed to how often patients sue, Hyman and Sage report that,” by one estimate, there are more than 1 million medical injuries, annually, but only eighty-five thousand malpractice claims. They are quick to point out that “Not all of these injuries are the result of medical negligence.” But while we don’t have good nationwide statistics on how often patients are harmed by human error, many states have compared medical injuries to the number of claims.

In a 2006 article published in the Vanderbilt Law Review, Hyman and co-author Charles Silver offer examples: From 1996 through 1999, Florida hospitals “reported 19,885 incidents of medical negligence to a state agency, but patients filed only 3,177 new medical malpractice claims.” Thus “the total number of hospital -reported negligent incidents was 6.3 times the number of state-wide malpractice claims.”
“Because under-reporting of such incidents is common, and the study did not include negligent incidents in the outpatient setting, the actual ratio of negligence to malpractice claims is undoubtedly much higher,” they add.  Another “observational study of patients in a single hospital in Chicago found that only 1.2 percent of patients who experienced a medical error made a claim” A third  study “focused on birth injuries in Florida in 1987 that resulted in death or permanent injury. Of 220 women whose babies suffered serious injuries or died, only twenty-three sought legal advice and none sued.”

Even in cases of wrong-site surgery, patients are exceptionally forgiving.  Consider this stunning statistic: in US. hospitals and clinics surgeons operate on the wrong body part—or the wrong patient—“40 times a week,” Kaiser Health News reported a few days ago, pointing to a statement by the Joint Commission, the Chicago-based group that accredits the nation’s hospitals. Investigators at the Commission had analyzed state data.

Mark Chassin, a former New York state health commissioner and since 2008 president of the Joint Commission, told KHN that he thinks such errors are growing in part because of increased time pressures. Preventing wrong-site surgery also “turns out to be more complicated to eradicate than anybody thought,” he said, “because it involves changing the culture of hospitals and getting doctors –who typically prize their autonomy, resist checklists and underestimate their propensity for error—to follow standardized procedures and work in teams.” A “time out” is considered an essential part of patient safety:before surgery begins all work  is supposed to stop so that the  team “can confirm  that they have the correct patient, correct procedure, correct site and side, medications on the sterile that of all items anticipated for the procedure to begin.”

Philip F. Stahel, director of orthopedic surgery at Denver Health Medical Center  served as lead author of a 2010 study of 132 wrong-site and wrong-patient cases between 2002 and 2008 of which one-third resulted in death or serious injury. In 72 percent of cases there was no timeout.

Stahel says many doctors resent the rules, even though orthopedists have a 25 percent chance of making a wrong-site error during their career, according to the American Academy of Orthopaedic Surgeons, which launched a voluntary “Sign Your Site” campaign in 1997. (The AAOS deserves credit, though I fail to see why signing the site should be voluntary.)

The legal system typically offers little recourse: One study found that only a third of wrong-site cases result in a malpractice suit. Stahel’s team found that the average payment was less than $81,000 in cases resulting in a lawsuit and $47,000 in those resolved without legal action.

While some wrong-site errors inflict little or no injury, either because they are corrected early or did not involve major surgery, others are devastating. Last year a jury returned a $20 million negligence verdict against Arkansas Children’s Hospital for surgery on the wrong side of the brain of a 15-year-old boy who was left psychotic and severely brain-damaged. Testimony showed that the error was not disclosed to his parents for more than a year.

Kenneth W. Kizer, who coined the term “never event” nearly a decade ago when he headed the National Quality Forum, a leading patient safety organization, said he believes reducing the number of errors will require tougher reporting rules and increased transparency. Kizer, California’s former chief health officer, advocates mandatory reporting of wrong-site errors to a federal agency so cases can be investigated and the results publicly reported.  Right now, KHN notes, only half of all states require that the hospital or doctor report the incident:

Reporting to the commission is voluntary and confidential—to encourage doctors and hospitals to come forward and to make improvements, officials say. In two states that track and intensively study these errors, 48 cases were reported in Minnesota last year, up from 44 in 2009; Pennsylvania has averaged about 64 cases for the past few years.”

“How can you say these things should not be reported?” asks Kizer. “These are the health-care equivalent” of plane crashes.

Kaiser Health News reports that although “efforts to eliminate wrong-site surgery  have been unsuccessful, there is an overall consensus if safety protocols are properly implemented and followed these tragedies do not have to happen.” The Canadian Orthopaedic Association mounted a significant educational program from 1994-1996 to eliminate this problem and has reported that the number of known wrong site orthopaedic surgery claims in Canada has subsequently dropped dramatically.

In Part 3 of this post, I’ll examine why patients don’t sue, and explain that, contrary to what the fear-mongers say, the number of malpractice suits, the size of awards and even malpractice premiums have leveled off or fallen in the recent decades. We are not experiencing a litigation crisis that is driving health care inflation.

Why then, do conservatives speak with such passion about the need for malpractice reform?  Their real concern has little to so with protecting doctors or hospitals, the authors of the American Enterprise Institute say. Their goal is to shield all businesses from consumer suits with an eye to protecting corporate profits.

Finally, in Part 3, I will also discuss other solutions to the malpractice mess: safe harbor for doctors who follow guidelines, special “health courts” where cases are decided by medical experts, not juries, as well as the theory that if doctors and hospitals “disclose, apologize and compensate,” the cost and the pain that the system now inflicts, both on doctors and on patients, could be greatly reduced.

Maggie Mahar is an award winning journalist and author. A frequent contributor to THCB, her work has appeared in the New York Times, Barron’s and Institutional Investor. A fellow at the Century Foundation, Maggie is also the author of the influential HealthBeat blog, one of our favorite health care reads, where this piece first appeared.

 

Leave a Reply

56 Comments on "Myths about Medical Malpractice: Part 2 Crisis or Hoax?"


Guest
rbaer
Jul 12, 2011

Maggie,
I believe that you mean well and trying hard, but I think you are really not listening to the the majority of physicians who are concerned about litigation and defensive medicine.

1) Most physicians are concerned about any kind of lawsuit, caps that usually apply to noneconomic damages don’t matter (in that respect, you got it right)
2) As I said before (and Dr. mike did above), this is not a partisan issue for physicians (it may be for our major parties). I am a PNHP member (single payor advocacy group) and still concerned about the issue. Physician friends who teach public health are concerned as well. Yes, there are some docs (for instance that pediatrician who writes for salon.com) who go along with what you write, but they are a minority.
3) It would be interesting to poll physicians knowing a different medicolegal environment – I know (from own experience and talking to many colleagues from other countries) what the result would be. The only small study I know about is
http://www.clineu-journal.com/article/S0303-8467(05)00101-0/abstract
4) Is your explanation for the fear of malpractice suits mass psychosis? Republican propaganda?

Guest
Jul 12, 2011

I agree that doctors are not generally capable of comprehending the aggregate social costs of med-mal litigation, but their self-interest in reform does not necessarily mean that it’s a bad idea.

As for the fact that med-mal payouts are extremely skewed, “conservative” scholars agree with that and argue that this is a negative outcome of med-mal litigation. Socially optimal med-mal litigation would result in more equitably distributed awards.

Guest
Greg Pawelski
Jul 12, 2011

Maggie

Unfortunately, there will always be conservative ideologs that will try to drive the tort de-form movement. It’s the “take care of yourself” that rules this mythology, like a drug addiction. Jury awards fall into this category. It’s this ideology that drives the tort de-form movement to proudly say that one of their goals is to defund trial lawyers so they will no long be able to mount an effective opposition to their political movement. We need to weed out bad doctors, implement patient safety reforms and reform the insurance industry, rather than restrict patients’ rights. The pain and suffering award is used to level the playing field. It’s essential that injured victims’ rights to due process be protected.

Guest

Maggie Mahar has chose to frame malpractice reform as a conservative-liberal issue.

Eleven times she evokes the word “conservative,” and I quote.

1. Conservatives call it the “malpractice crisis.” Public Citizen, a liberal non-profit consumer organization based in Washington D.C., calls it “The Great Medical Malpractice Hoax.”

2. “Put a lid on how much a jury can pay a patient for pain and suffering,” conservatives say, “and watch the suits begin to disappear.

3. In April, the American Enterprise Institute for Public Policy Research (AEI) released a working paper which pulls no punches as it rejects the conservative wisdom on capping awards.

4. AEI is a conservative think tank.

5. Yet, despite abundant evidence to the contrary, conservatives continue to talk about “opportunistic lawyers” and “phony” suits in a debate over medical malpractice that Hyman and Sage point out in their paper for the American Enterprise Institute, “can often seem theological.”

6. “On one side are those conservatives and doctors who have no doubt that frivolous lawsuits and Democratic politicians beholden to trial lawyers are the reasons American health care is so expensive.

7. “On one side are those conservatives and doctors who have no doubt that frivolous lawsuits and Democratic politicians beholden to trial lawyers are the reasons American health care is so expensive.

8. . Conservatives make the argument that since plaintiff’s attorney usually work on contingency, (taking 30% or 35% of the award if they win), they will be less likely to take on cases if pay-outs don’t exceed $250,000.

9. There is no evidence that doctors practice more conservative medicine in states such as Texas.

10. Again, keep in mind that AEI is a conservative think tank and that Davd A. Hyman is an adjunct scholar at the libertarian Cato Institute.

11. Why then, do conservatives speak with such passion about the need for malpractice reform.

Her overuse of the word “conservative” shows her bias and mars an otherwise balanced and well-written blog. Malpractice reform is not about conservative-liberal differences. There is not a nickel’s worth of difference in malpractice rates among conservative and liberal doctors or among conservative and liberal sections of the country. It is about the built-in incentives for physicians and lawyers engendered by the American jurisprudence system, which produces the highest malpractice rates on the planet.

Personally, I believe the answer may reside in adoption of the rule of British legal system, where losers in malpractice law suits pay. As noted in a December 15 Wall Street Journal editorial, “Loser Pays, Everybody Wins, “ perhaps we should adopt “ a British-style ‘loser pays’ rule, which would require plaintiffs to pick up the legal costs of their targets if they lose their suits. Almost all of America’s economic competitors follow a similar standard, but trial lawyers and their Democratic codependents have blocked states from making this revolutionary improvement to U.S. civil justice.”

Guest
Jul 13, 2011

Richard & Rbaer

Malpractice reform has always been a highly partisan issue. Conservative think tanks like the Heritage Foundation and the Republican party have claimed malrpactice reform (and “tort reform) as their issue for years.

Below, from Newbatch –* Your Internet Guide to an Understanding of Polilcy Issues.)
“Tort Reform” is a very partisan issue. At both the state and national levels, Republicans overwhelmingly support tort reform and Democrats oppose it. The trial lawyer associations which represent plaintiff lawyers are major contributors to the Democrats. Insurance and medical interests contribute heavily to Republicans. In fact, the tort reform debate can be considered as an aspect of the overall political dynamic involving distribution of the nation’s wealth. The most contentious issues involve medical malpractice and product liability. The result of settlements and verdicts of these cases is a transfer of wealth from groups which tend to be wealthy to victims and their lawyers. Virtually all the reform proposals ultimately attempt to limit the amount of funds which are distributed in this fashion.”

Also: “Tort reform remains a major policy objective of the Republican party. The 2008 Republican platform continues the pledge to reform what is described as corruption in the civil litigation system”

Then there is this from Forbes magazine: “conservatives have long argued that if we could only do away with – or place severe caps on- malpractice claims, a major step towards bringing down the high cost of care could be achieved.”

This is from Wise Republic (” a new common sense, Reagan conservative news & opinion blog.”)
“The Republicans in the House want to quickly satisfy their constituents who have been pressing for tort reform for 15-20 years–which to most of them means hard caps on non-economic damages. Yet the Senate Democratic Leadership is known to be quite sympathetic to the personal injury lobby, which is adamantly opposed to all tort reform, particularly caps on damages

Finally, this from the New York Times “about.com”
“Conservatives are typically supportive of reforming tort litigation.

In other words, both conservatives and liberals view tort reform as a partisan issue. IF you look at a history of Congressional votes on the issue, you’ll find that they break down along party lines. Finally, plaintiff’s attorneys have a long history of contributing to liberals during compaigns while those who support tort reform (which includes malpractice insurers) have a long history of contributing to conservatives.

. Dear rbaer,

Thank you for your very civil response.

I’m afraid that some doctors have mis-read what I am saying about
our malpractice system. One commenter wrote: “the bulk of the article is in defense of the current system”

Yet in the fourth paragraph, where I sum up my argument (what journalists call the “nut graph)”, I write:

” Our malpractice system should be redesigned to reduce medical mistakes, fully compensate patients who are injured by human error, reward doctors and hospitals that disclose errors, and penalize those that try to ”cover up.” When it comes to the cost of malpractice, reform should slash the exorbitant administrative costs built into an adversarial process that moves at a snail’s pace, while subjecting both plaintiffs and defendants to what a recent report from the American Enterprise Institute rightly describes as ‘inhumane.'”

Does this sound like a defense of our current system?

In this second part of the blog I am trying to reasure physicans that their chances of being sued are not nearly as high as fear-mongers suggest because I believe that seeing every patient as a potentail plaintiff (what one doc who commented on my blog said he was taught “from the first day of medical school”) undermines the patient-doctor relationship.

But, as I say in the post, I don’t mean to in any way minimize how horrible it is to be sued.

Yet,, the truth is that a great many doctors will, inevitably, make a mistake at some point in their careers that will seriously injure or even kill a patient. (See Dr. Atul Gawande’s very honest book “Complications.” )
I think we all need to admit this: doctors and patients.should realize that
doctors are fallible and medicine is a n imperfect science.

When our heatlhcare system fails us and patients are injiured by a medical error, hosptials and dooctors need to admit that they made a mistake, fully disclose what happened (legally protected so that this it not used against them), and apologize. Tje malpractice insurance company or hospital (many hospitals are self-insured) need to compensate the patient.
Then, –and this is most important– everyone involved needs to figure out how to avoid making the same mistake in the future.

The goal of malpractice investigations should be to try to reduce malpractice. I would like to get away from a “blame & shame” culture and
move toward a culture where doctors are willing to admit mistakes. Today, it
seems that too many docs just become very hostile at the very idea that they might be sued.They seem unwilling to admit that, in fact, even if they are good doctors, at some point(s) in their career they will, almost inevitably,
make mistakes that harm patients. Hospitals and dcotors need to learn from those errors. But if they dont’ acknowledge them, they won’t learn.

Finally, I’m surprised that so many doctors seem more concerned about what they perceive as a large number of malpractice claims–and less concerned by the much larger number of patients who are harmed while receiving medical care. (The research shows that the majority of patients seriously injured by a medical error don’t sue.)

I actually know doctors who say that sometimes they can’t sleep, not because they are worried about being sued, but because they are worried
about a patient. “Did I miss something? Why isn’t she getting better? She’s such a lovely person . . I don’t think I missed something, but tomorrow, I’m going to call Doctor X and and ask him what he thinks.”

The very best doctors realize that they are fallible, and consult with others.
They worry more about their patients than they worry about themselves.

I would submit that, as a result, they are less likey to be sued. And if a patient does bring a claim,, there is a very, very small chance that the doctor will lose. Part of what I was trying to explain in this part of the post is that our current malpractice system is not totally irrational. Doctors should not feel that theyare practicing in the middle of a malpractice lottery.
,
Ultimately, all a doctor–or anyone can do is do his or her rjob as well as he or she possibly can. (Btw , as a financial journalist, particuarly at Barron’s, I was vulnerable to suits that could have killed my career. When doing a story, I just didn’t think about it. I simply tried to dot my i’s and cross my t’s– much as a doctor would try to follow evidence-based recommendations and safety protocols.

Dear rbaer,

Thank you fso much for your very civil response.

I’m afraid that some doctors have mis-read what I am saying about
our malpractice system. One commenter wrote: “the bulk of the article is in defense of the current system”

Yet in the fourth paragraph, where I sum up my argument (what journalists call the “nut graph)”, I write:

” Our malpractice system should be redesigned to reduce medical mistakes, fully compensate patients who are injured by human error, reward doctors and hospitals that disclose errors, and penalize those that try to ”cover up.” When it comes to the cost of malpractice, reform should slash the exorbitant administrative costs built into an adversarial process that moves at a snail’s pace, while subjecting both plaintiffs and defendants to what a recent report from the American Enterprise Institute rightly describes as ‘inhumane.'”

Does this sound like a defense of our current system?

In this second part of the blog I am tyring to reasure physicans that their chances of being sued are not nearly as high as fear-mongers suggest because I believe that seeing every patient as a potentail plaintiff (what one doc who commented on my blog said he was taught “from the first day of medical school”) undermines the patient-doctor relationship.

Moreover, my point is not just that less than half of doctors wil ever be sued. The vast majority who are sued once, will win, This knowledge should cut their fear.

As I say in the post, I don’t mean to in any way minimize how horrible it is to be sued.

But, the truth is that a great many doctors will, inevitably, make a mistake at some point in their careers that will seriously injure or even kill a patient. (See Atul Gawande’s very honest book “Complications.” )
I think we all need to admit this: doctors and patients.should realize that
doctors are fallible and medicine is a very imperfect science.

When our heatlhcare system fails us and patients are injiured by a medical error, hosptials and dooctors need to admit that they made a mistake, fully disclose what happened (legally protected so that this it not used against them), and apologize. The malpractice insurance company or hospital (many hospitals are self-insured) needs to compensate the patient.
Then, –and this is most important– everyone involved needs to figure out how to avoid making the same mistake in the future.

Of course in many cases where the outcome is bad, there was no error.
Full disclosure of exactly what happened can make that clear if everyone who was involved–including nurses– are allowed to talk and describe what happened. As the American Enterprise Instititue report explains, plaintiffs often drop cases once they getting into the legal process of “discovery” (which forces the hospital to produce documents etc. revealing what happeped) and realize that no error was made. But plaintiffs shouldn’t have to sue and go through the expensive legal process of discovery to find out what happened.

My main point is that the goal of malpractice investigations should be to try to reduce malpractice. I would like to get away from a “blame & shame” culture and
move toward a culture where doctors are willing to admit mistakes. Today, it
seems that too many docs just become very hostile at the very idea that they might be sued.They seem unwilling to admit that, in fact, even if they are good doctors, at some point(s) in their career they will, almost inevitably,
make mistakes that harm patients. Hospitals and dcotors need to learn from those errors. But if they dont’ acknowledge them, they won’t learn.

Finally, I’m surprised that so many doctors seem more concerned abcout what they perceive as a large number of malpractice claims–and less concerned by the much larger number of patients who are harmed while receiving medical care. (The research shows that the majority of patients seriously injured by a medical error don’t sue. Injuries far outnumber suits)

That said, there are doctors who worry more about the patients than the lawsuits. I know doscotrs who say that sometimes they can’t sleep, not because they are worried about being sued, but because they are worried
about a patient. “Did I miss something? Why isn’t she getting better? She’s such a lovely person . . I don’t think I missed something, but tomorrow, I’m going to call Doctor X and and ask him what he thinks.”

The very best doctors realize that they are fallible, and consult with others.
They worry more about their patients than they worry about themselves.

Guest
Jul 13, 2011

Richard–

The problem with “loser pays” is that low-income and middle-income people wouldn’t be able to sue. They couldn ‘t risk losing and be bankrupted. (Unlike hospitals and doctors they don’t have insurance that will pay their court costs.)

In European countires that have adopted “loser pays” there are generous safety nets that protect a patient who sues & loses. Thanks to universal health care, all of his medical expenses are paid.He may well receive free legal services. And bankruptcy laws are differentt in Europe.

Guest
Jul 13, 2011

Greg & John

Greg–Yes, we really should be focusing on the patiients who are injured.–and figuring out how to reduce medical errors.

We need to compensate patients for pain and suffering. Tell the woman who accidentally had two breast removed (patient mix-up) that she should just be happy if the insurer pays for reconstructive surgery . . . .

In extreme cases like these large pain and suffering rewards will make hospitals take these mistakes seriously and enforce rules that could virtually eliminate wrong-site surgeries.

I’m afraid the “take course of yourself” mentality is commonplace among those who talk about bankrupting plaintiff’s attornies. But luckily, they do nto
represent all doctors.

John–
I ‘m not sure what evidence there is that med-mal payouts are skewed.
Everything that I have read– including the American Enteprise report and the Harvard study– indicates the pay-outs are highest for serious permanent injury, and lowest for more minor or temporary injury.

Could you point to reserach?

Guest
rbaer
Jul 13, 2011

Maggie,

I agree that it has become a partisan issue in the US, where other issues that should not be partisan have become partisan as well (e.g. global warning). However, the unfairness of the legal system affects doctors on a daily basis (I am not forgetting injured patients, but let’s keep this separate for a moment). The fact that liberal/progressive docs (incl., but not limited to myself) agree with conservatives on this very issue should give you pause.

I seriously suggest the following: go to any medical center in the US and start interviewing US doctors who did several years of practicing and/or training abroad about the following questions:
(1) How does the (perceived) medicolegal threat in the US compare to the (perceived) threat in your home country? If there is a difference, what do you think is the reason for this difference?
(2) How do you think is patient safety and the risk of negligent injury comparing the US and the country you first practiced in?

I casually talked about this with many fellow FMGs from various countries. If you did the same, you would be gaining a better perspective.

Guest
Barry Carol
Jul 13, 2011

“The fact that liberal/progressive docs (incl., but not limited to myself) agree with conservatives on this very issue should give you pause.”

rbaer –

I agree. I also note that of the many comments posted by doctors on this subject in response to Maggie’s first two posts of her three part series on medical malpractice and associated litigation, not one said anything like the following: The fear of malpractice suits is grossly overblown in the U.S. and I personally practice very conservatively with minimal defensive medicine regardless of how my local colleagues practice because I don’t fear lawsuits. My competence and conscientiousness as well as my pleasant bedside manner should afford me ample protection. Besides, even if I am sued, I’m confident that I’ll win the case.

The fear of suits is real and it affects doctors’ practice patterns and the development of standards of care though how much that adds to healthcare costs is impossible to quantify with any precision. Perceived litigation risk is, in all likelihood, far higher in the U.S. than it is in Western Europe, Canada, Japan or Australia.

Guest
Jul 13, 2011

Barry–

Thanks for your comment.

First: Doctors who fear malpractice suits are vocal. Doctors who are far less concerned about this issue are less likely to speak out. They don’t want to upset colleagues.

Similarlly, people who live in the West and own rifles in order to hunt, but don’t own hand-guns, don’t speak out to advocate gun control of hand guns. They don’t want to become pariah in their own towns

You write: “Perceived litigation risk is, in all likelihood, far higher in the U.S. than it is in Western Europe, Canada, Japan or Australia.”

“Is, in all likeihood,” suggests that this is your opinion. Could you point us to any research which backs up the opinion?

Guest
rbaer
Jul 14, 2011

Maggie,
I am not Barry but I linked to one small study re. your very last sentence above. And there is probably more research about the frequency of med litigation that you should know prior to writing this large series.

Also, you are good at interviewing docs and well connected. Why wouldn’t you pick up my above suggestion of interviewing FMGs? There a lots of docs from India, Pakistan, China, and quite a few from Thailand, Germany and many who spent some time in GB.

Guest
Dr. Mike
Jul 13, 2011

“My main point is that the goal of malpractice investigations should be to try to reduce malpractice.”
I don’t see how any thinking person reading your two posts so far would come to the same conclusion. That may be coming in part III, and indeed you have alluded to that goal, but it would see to me that your main point so far has been that the current malpractice system is for the most part tolerable, driven by the incompetence of physicians, and if they were just willing to learn from there mistakes there wouldn’t be so much litigation.
“I would like to get away from a “blame & shame” culture and move toward a culture where doctors are willing to admit mistakes.”
And yet your arguments so far are exactly “blame & shame.” Your animosity towards whole groups of people drips from your words, but of course you don’t see it that way because you are the one who is right. What do you think happens when you admit that you made a mistake? Yes, that’s right, you get sued because there exists no other mechanism by which to compensate the patient. A simple law suit might not seem like such a bad thing to you, but then it is clear from your article so far that you have no empathy for nor understanding of why physicians are so loath to suffer the consequences that follow in the aftermath of a suit in today’s health care and legal environment.
“Today, it seems that too many docs just become very hostile at the very idea that they might be sued.”
Actually, I love the very idea that I might be sued. Does that sound like a statement a sane persone would say? Yes it’s a bit extreme to say ‘love’ but does it really make any more sense to say “I’m ok with the idea of being sued, because I know that I would only be sued when I truly made a mistake and I’m sure the whole process will be a learning experience.” It is astounding that anyone who has any understanding of the current tort system would ask a physician to make such a statement, and yet, you did.
“Injuries far outnumber suits”
This gets to the crux of your argument in which you take this little factoid (and a few dozen similar factoids) and make it to mean, “You incompetent bast@rds, you’re not getting punished half as much as you should be, so shut your whining and start admitting your mistakes.”
“When our heatlhcare system fails us and patients are injiured by a medical error, hosptials and dooctors need to admit that they made a mistake, fully disclose what happened (legally protected so that this it not used against them), and apologize. Tje malpractice insurance company or hospital (many hospitals are self-insured) need to compensate the patient.
Then, –and this is most important– everyone involved needs to figure out how to avoid making the same mistake in the future”
Upon this I think we all agree. The problem is your attitude is so caustic towards the current players in the health care system that it makes it very difficult to view your article as an attempt to improve upon the current failed system. I for one look forward to reading part III, but I suspect that your goal in enlightening all of us would have been achieved much more efficiently had you only written part III.

Guest
Greg Pawelski
Jul 13, 2011

Why is tort deform even on the national agenda? Only 2% of injured people sue for compensation, punitive damages are rarely awarded, liability-insurance costs for businesses are minuscule, medical-malpractice insurance and claims are less than 1% of all health care costs and premium-gouging underwriting practices have been already widely exposed?

Legislation to place limits on medical malpractice liability hurts patients by restricting their rights to hold physicians, hospitals, insurance companies, HMOs, and drug and medical-device manufacturers accountable for injuries or death resulting from negligent care.

As for the claim of ever-climbing jury awards, studies of verdicts are skewed by what study sponsors leave in or leave out. The medical associations look only at reported jury verdicts. The trial lawyers track all verdicts, including nonjury verdicts, through appeals, settlements, and court-ordered reductions.

Limits on the rights of people hurt by medical malpractice will victimize them and their families further while helping neither patients nor doctors. The real beneficiaries will be insurance companies, including the doctor-owned malpractice insurers.

Guest
Barry Carol
Jul 13, 2011

“”In, in all likeihood,” suggests that this is your opinion. Could you point us to any research which backs up the opinion?”

Maggie –

It is my opinion and I don’t have any specific research to cite. I do recall reading, though, in T.R. Reid’s book “Healthcare Around the World” that, according to the author, doctors he interviewed have a much lower perceived risk of being sued than U.S. doctors do.

Conversely, Paul Levy had a blog post sometime back about the healthcare system in Israel after he was there for a conference. In response to a question from me about malpractice, an Israeli doc told him that litigation there was getting worse and was starting to look more like the U.S. environment, especially for OB-GYN’s, orthopods and neurosurgeons.

Guest
Peter
Jul 14, 2011

My good friend who is a doctor in Spain told me that to be sued in Spain one would have to be seen actually smothering the patient or shooting them.

Guest
rbaer
Jul 14, 2011

Determined colleague,
I want to comment that I do not think that MM is hostile towards docs (although some of her conclusions may sound hostile if you feel the medicolegal threat as a doc), and her book re. “Money driven mediciine” is well researched (with plenty of doctor interviews) and right on the mark, as far as I can recall. There are also some, I would say rather few docs (for instance Dr. Parikh, a pediatrician who occ. writes for salon.com) who echo her thoughts about malpractice). Other than that, I noted that when people interested in HC delivery have an opinion similar to MMs, they tend to be economists, PhDs but not clinicians.

But I think that this is a small minority (does not prove them wrong per se, but …), and I agree with you that the statements “the statistic of about 42% of doctors will be sued in their careers and then one or two paragraphs later says basically “no need to panic” is rationally hard to uphold rationally.