Too Many Lawsuits? My Foot

Republicans seek to limit medical malpractice lawsuits. The AMA claims that million-dollar jury awards increase the cost of health care. Actually, for every patient who sues, there are several who should but don't.

A Harvard study that examined the records of 30,000 patients in New York discovered that 280 contained "strong or certain evidence of negligence." Extrapolated statewide, this equaled 13,000 cases of negligence in a single year. The study also found that only one out of every eight patients who had a valid medical malpractice claim actually filed a suit. The negligence included the surgical removal of the wrong leg or kidney, brain damage to newborns, and improper matching of donor and recipient.

Many victims of malpractice don't know that negligence caused their problem. Others refuse to sue because they consider it human to err, are grateful to a physician of many years for care, or fear that they will be refused treatment if they sue.

Patients who do prevail in court rarely receive outlandish awards, which are said to drive up the costs of health care, entice trial lawyers to bring unwarranted lawsuits, and push physicians to order unneeded procedures to protect themselves. Actually, more than two-thirds of malpractice lawsuits are dismissed or dropped before they are settled or brought to trial, and those that do survive do not result in massive awards. Many of the rare large jury awards are scaled back on appeal.

Moreover, one can narrow the field without punishing those who deserve compensation. Several states have already introduced malpractice review panels. Patients who wish to file a suit must first submit their cases to these panels. If a panel rules against the case, a plaintiff may still sue, but the panel's report can be filed with the court. Such panels do effectively deter unwarranted suits.

If we are to avoid government regulation of medical decisions, we must let the private sector work. It works when patients who know that they have been wronged seek justice by vying directly with doctors and their lawyers. One would expect the champions of the private sector to welcome, rather than seek to curb, such justice.

Amitai Etzioni is a University Professor at The George Washington University, and the author of The Moral Dimension: Toward a New Economics. He can be reached at [e-mail]. http://www.gwu.edu/~ccps/securityfirst.html

 

 

Comments

[DCBarrister]

Obama embracing the Republican myth of tort reform solving every problem with the US economy, the deficit and healthcare shows how badly Barack Obama needs a spine.

Somebody call a doctor.
Better yet, vote Obama out in 2012

Hillary 2012

[research]

Haven't you had enough DLC fake Dems?

Kucinich/Dean 2012!

[gtt]

Obama has not embraced tort reform. He has only allowed that Secretary Sebellius conduct study to determine the extent of "the problem".

President Obama needs support of democrats to get accomplishments.

[NevadaLib]

instead of tort reform, we need doctor reform. I've never been properly diagnosed for injuries, not to say I've had many or that they've been life threatening, nor have I ever pursued legal action.

[DevonTexas]

Here in the Republic of Texas we have "tort reform" and the worst healthcare record outside Florida. Tort Reform actually encourages malpractice.

[dillydawg]

Absolutely true.

[cheeriogirl]

Forget tort reform as it has been proven to do NOTHING for the patients. We need LEGAL reform, and we need it fast!

How is it that a person can be harmed from some type of injury, and then THEY have to pay the legal fees? If an accident was truly the fault of someone else's negligence or malpractice, then why doesn't the offender have to pay ALL legal fees of the person harmed? This would help eliminate some needless lawsuits, since the person who is alleging they are NOT GUILTY might just think twice before taking a known LOST case to the courts, and tying up our judicial system with appeals for YEARS.

All this talk of reform, yet none of the reforms suggested by the Republicans seem to be made in the interest of the people. Somehow all reforms they agree to seem to give relief in some fashion only to CORPORATE INTERESTS and BIG BUSINESS.

LEGAL REFORM IS A MUST. Let's knock this profession down a few pegs, and we might actually get some meaningful reforms that would actually make a difference in the lives of most American citizens.

[Toxictort]

Actually they do. It's calculated into the contingency fees that are awarded at the end if the plaintiff prevails. In the interim, the lawyer works, sometimes for several years, paying all of the costs of the lawsuit and their expenses on the hope and prayer that the suit succeeds. That is why tort reform is crippling to the people who are hurt. Some injuries can't justify an attorney's costs on taking on the case because the award would not compensate the attorney for the costs expended on the case and still award the client anything. Trust me, teaching Americans to hate trial attorneys is another insurance company trick. Set the doctors against the lawyers and set the general public against all lawyers. Easy enough to do since everyone thinks that doctors are gods no matter how many wrong organs they remove or acts of ego they perform on a daily basis and turn the lawyers into the enemy (which is a common refrain in popular culture.) In the interim, they make both sides pay malpractice insurance and walk away laughing. Some issues are not as easy as you might think.

[DCBarrister]

Knock the lawyers (who are the only reason that families harmed by medical mistakes get a day in court) down a few pegs?

You mean while the insurance companies still make off with millions a day in premiums they never pay out?

In a word, silly.

[milty]

Greedy banks, wall street ceo's, oil companies, drug companies, insurance companies, etc. NEVER greedy law firms. Why? Maybe that 80% of pols are lawyers and continue to protect the profession. No, they would never do that would they.

[BLBass]

I really like that review panel idea. I think there's a good case to be made that instituting this at either the federal or state level would constitute effective tort reform without requiring further action. Probably this would be the most efficient possible way to achieve the desired result, so of course the right wing will call it socialism or some other nonsense name...though I'd be happy to be proved wrong on that front!

[DrInsula]

Yes, the myth about "tort reform," has been around for awhile, a product of Conservative imaginations,; just like the "Welfare Queen," Myth and several others. Great article; more people need to understand what the horrible "tort reform" really means. It is NOT about frivolous lawsuits, but about taking away the ability of a person who is severely harmed to have any redress. This is the same whether medical liability, device manufacturers (think carseats for kids!), or environmental. Environmental "tort reform," means letting corporations pollute your drinking water, irradiate you, put mercury in your food, without having to worry that you can hold them accountable.

[S1m0n]

A lawsuit is the only way that any corporation can be disciplined. They may be a legal ' person', but they're immune to our legal system's strongest punishments, such as a jail sentence. There's only one way they can be hit, and that's by impacting the bottom line. A lawsuit does just this. Otherwise, any incorporated entity would have almost total impunity. It's hard enough keeping them honest.

[janforgoodusfuture]

The lawsuit practice of America leads to huge costs for patients in high insurance and expensive and unnecessary tests. It is absolutely correct to try to limit medical lawsuits. It will reduce the cost for health care in America with probably 50%. Why 50%? Because America is spending 50% more of GDP on health care without providing better care.

A message from a Swedish Doctor
(yes, Sweden is CONSERVATIVE right now, not socialist as many believe)

[stryker]

Prove that it will reduce medical costs. Where have doctors and hospitals lowered their charges where there have been caps on lawsuits? Where have the inusrance companies lowered their premiums? Tort reform only means that the corporations can keep making the big bucks and not pay out what they are supposed to.

[HeevenSteven]

Texas capped lawsuits and it did nothing to bring down costs. This is a must read.

http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande

[alima]

Thanks for a long-overdue response to another specious argument in the right’s effort to maintain the status quo for the rich. My late husband was a prominent plaintiff's medical malpractice trial lawyer in California. I can assure you that 100 percent of the cases he tried were genuine and often horrific. He saw his role as defending the ordinary family -- not against bad doctors, although there were some of course, but against the insurance industry. Most cases arose out of hospital negligence and/or pressures from insurance companies, whose defense attorneys routinely hired "expert" witnesses at extraordinary hourly rates to lie on the stand.

Contrary to Republican rhetoric, my husband, like his peers, was motivated by a passion for social justice rather than greed. He won the great majority of his trials and juries often awarded significant punitive damage as well as compensation awards. However, the defendants always appealed the verdicts, delaying receipt of compensation sometimes for years. Since these cases are often costly to prepare and are typically taken on a contingent fee basis, they do not tend to make plaintiffs' malpractice lawyers rich. They do, however, provide the only recourse to those whose lives have been devastated by negligence (not by excusable mistakes). They should also represent another means of "keeping the insurance companies honest." However, the industry has manipulated the situation into a means of making further profits by increasing doctors' malpractice insurance rates, scaring them into unnecessary procedures.

[research]

yes. And it's only half a percent of total direct health care costs.

Of course the real problem is the Insurance companies,

The medical malpractice insurance companies and abusing the doctors worse then they abuse the patients.

[pinellas]

Hear, hear! Yesterday, on NPR, a woman was profiled who said she was a Republican who voted for Obama over the health care issue, & that she was in favor of tort reform. That term has been successfully pushed on the general citizenry who think it means something it doesn't.

It's a damn shame there are so many otherwise well-meaning, but stupid people who are helping further this sham.

[oldngrumpy]

There are a few cases of outlandish awards that always make the news, but most of the time it is a case of David and Goliath when a patient considers taking on the medical establishment and their insurer. Many cases are not even possible because the entire medical system involved will circle their wagons around the endangered party, making information impossible to obtain and the patient is likely already subject to severe financial pressure due to the injury.

There is a fine line to tread between protecting a patient's right to safe and reasonable care and creating an adversarial relationship between patient and doctor that makes care more expensive and less effective, but we must find that line. A revue board may well be the answer if it is staffed with professionals and lay persons so that both sides of a complaint are represented. A reform of insurance that would decrease the cost of extended care would also lower awards. The more cases that can be diverted away from the court system the more equitable the situation will become as long as the patient has access to a mechanism that can resolve his complaint without requiring major financial investment.

[Willow-the-Witch]

More than "just" tort reform needs to be addressed. Even if a state has limited awards, that doesn't force the malpractice carriers to lower their premiums in any way. Several OB/GYNs in Ohio moved to Indiana after Ohio insurers decided that not only were their premiums not going down, but they would be due in one lump sum.

I understand that some specialties involve more risk than others, but that is not an excuse to continually raise premiums each year or add other monetary burdens onto physicians who have not had claims brought against them.

Seems the insurance companies are the enemy of us all.

[alex61]

To that I would add the trial lawyers. They pump up the amounts sought by the patient so they (the lawyers) can make more money. Obviously, this hurts all of us. Everyone wants reform nowadays, how about tort reform as part of the deal?

[TonyMbutu]

Nonsense. Trial lawyers simply know what the law permits to be recovered in legal malpractice cases. It is the jury who decides this, under the eye of the judge (and the entire appellate system), not the jury. And, remember, for every plaintiff's attorney, there is a defense attorney (or a team of them) arguing the other way.

"Tort reform" is nothing more than a scam by the Republican party and rich people trying to make the rest of us into suckers by stripping the rights from regular folks in order to further fatten the already criminally fat wallets the rich already have.

If you want reform, "Wealth reform" with a 99% wealth tax on all assets over, say $50 million (and a corresponding tax on corporate assets), is a good place to start...

[RightWingMarine]

we could move to a loser pays litigation system.

[TonyMbutu]

That idea is stupid, but it isn't stupid enough. I say we make it illegal to sue a doctor. That'll solve the problem.

[standard]

That's what they have in England and it would be a very useful reform here.

[TonyMbutu]

Sure, "useful" to big corporations and other wealthy people trying to get away with commiting negligence and worse against the little guy. Not so "useful" for the victims...