Myths about Medical Malpractice: Part 2 Crisis or Hoax?

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.


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Maggie Mahar

To my more outspoken critics:

You guys are so angry. I have to wonder, why?

(I’m really not that important or powerful.)

Frank Castle
Frank Castle

Written just like OweBama — someone who has never been on the business-end of a lawsuit. Who’s never work on the floor of a busy hospital.

MM also left out “Bush’s fault.” Soros won’t like that.


Barry Carol
Barry Carol

“Both companies that sell diagnostic equipment as well as fear-mongers have persuaded doctors that “failure to diagnose” is a major cause of malpractice claims.” Maggie – While diagnostic imaging may be the first thing that comes to mind when one thinks of defensive medicine to avoid a potential failure to diagnose claim, it goes well beyond that. It can include lots of other things like blood tests, colonoscopies, biopsies of various types even when the doctor thinks the issue is probably nothing to be concerned about, cardiac stress tests, and even angiography, among others. Doctors who order most of these… Read more »

Maggie Mahar

The most recent comments on this thread (by Barry and 2 comments by Nate) have nothing to do with malpractice suits They are talking about personal injury lawsuits brought by consumers in many areas (asbestos etc.) This only confrims what Public Citizen say” “It is clear that this call for limits on the ability of injured patients to seek redress in court is just one piece of a larger effort by the business lobby to protect businesses from being held accountable when they recklessly or negligently hurt people.” The American Enterprise Institute makes the same point– I’ll talk about what… Read more »

Nate Ogden
Nate Ogden

“The most contentious issues involve medical malpractice and product liability.” Maggie please explain what product liability has to do with Malpratice suits. “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” Here you make another broad reference to the legal system as a whole. ““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… Read more »


Which is why this site is becoming a fraud. Watch out Nate, you will be next, guarantee it!

Sorry, had to comment after reading that last paragraph, as I was interested to see where the thread went after my abrupt exit.

Barry Carol
Barry Carol

The whole asbestos mass tort litigation was absolutely scandalous. Literally dozens of companies were bankrupted by this, many of which had only a tiny percentage of their sales from products that contained asbestos or had a tenuous and small connection to asbestos products at best (worst). For every legitimate cancer or mesothelioma claim, there were hundreds and sometimes thousands of marginal or even non-meritorious claims that were bundled together in class action lawsuits. Settlements resulted in huge paydays for the handful of law firms that handled most of the filings. Some of the senior lawyers involved became extremely wealthy from… Read more »

Nate Ogden
Nate Ogden

Look at a more recent scandal Pigford 1 and 2 settlements. A perfect example of trial lawyer abuse and abuse of the legal system. Then look at Maggies proposed reforms to tort, not one to address bogus lawsuits and fraud like this. If as a conservative you take issue with outright fraud like Pigford all of a sudden your labeled as opposing all lawsuits for poor hard working injured people, labeled a fear monger, and have your comments edited and stricken so no one dare queston the dogma. This is from one of the black farmers injured in the real… Read more »

Maggie Mahar

Dr. Mike– First, thank you for reaching out in a much less adversarial way. I appreciate that. On why I present this as a partisan issue; First, becuause that is the reality–not necessarily among doctors (who by and large are, understandably, distressed about malpractice claims)– but among the population as a whole. Physicians make up a tiny percentage of the population, and a tiny percentage of those who have real power in Washington. If want to understand politics, you need to follow the money.Conservatives are correct when they say that plaintiffs’ attorneys contribute relatively large sums to liberal poiticians. Meanwhile… Read more »

Nate Ogden
Nate Ogden

“Meanwhile business interests and Wall Street cointtrubte more to conservatives” The wealthy securities and investment industry, for example, went from giving 2 to 1 to Democrats at the start of 2009 to providing almost half of its donations to Republicans by the end of the year, according to new data compiled for The Washington Post by the Center for Responsive Politics As far as business; GE Google Microsoft Facebook etc etc “Conservatives, and the business interests that fund them, object to individuals/consumers bringing a personal-injury case against any corporation or business becausse this coudl reduce corporate profits.” This is extremly… Read more »