11/11/2009 05:12 am ET | Updated May 25, 2011

Is Malpractice Reform the Missing Link to Health Care Reform?

Apparently even Republicans stand and cheer at the President's mention of malpractice reform. Is there really a problem and is there any merit to the solutions being offered? Let's face it, while it is popular to blame lawyers for what is occurring in the medical malpractice area, it is important to recognize that no malpractice suit can survive dismissal without one or more doctors supporting the malpractice allegations.

The first assertion is that doctors practice defensive medicine for fear of law suits and that increases the costs. That would mean that doctors are ordering tests and treatments for patients that they do not believe are truly necessary. Is that true? I personally have never had that experience. But even if true, defensive medicine may not be such a bad thing. In addition to compensating persons wrongfully injured, one of the primary purposes of tort law is to set standards of conduct and deter future misconduct. When a person is injured by a defective product, a verdict for the plaintiff not only compensates that person for the injuries sustained, but hopefully causes the losing defendant and others to take corrective action so that it does not happen again. Although it may indeed increase costs, fear of lawsuits may have made doctors and hospitals more cautious, which, in turn, may have inured to the benefit and safety of patients.

It has been suggested that caps be placed on jury verdicts. The purpose of a jury verdict is to compensate the person who has been injured by malpractice. The judge who presides over the case is in the best position to decide whether or not the verdict is excessive. Arbitrary caps merely diminish an award to which the claimant is otherwise entitled. $250,000 may not come close to paying the expenses someone may face for a life-long incapacitating injury resulting from malpractice. I do agree that better standards for the imposition of punitive damages should exist, but insurance policies most often do not cover punitive damage awards, so they should have no impact upon the premiums charged.

It is claimed, particularly by doctors, that many such suits are frivolous and without basis. I know none of the statistics, but as I said at the outset, these suits cannot proceed without expert testimony from other doctors. So the fault dear doctors may lie not in our lawyers but in ourselves. But it must be recognized that frivolous law suits do require some transactional costs, but if truly frivolous, they should not result in financial awards.

Along the same lines of blaming the lawyers, it has been suggested that contingency fees be reduced in malpractice cases so as to reduce the incentives of lawyers to bring such actions. The justification for contingency fees is to provide persons with valid claims the opportunity to bring actions without fear of paying huge sums if they should lose. Punishing the lawyers by reducing their contingency can have no effect upon insurance rates or health care costs, but it could reduce the number of persons able to pursue legitimate claims. That should not be the goal of any legislation.

Suggestions have been made for some type of pre-screening, such as medical panels or mediation. Any system that works to eliminate the baseless claim is to be applauded. But frequently, setting up thresholds for the institution of suits, creates more rather than less expense. Suggestions regarding the establishment of specialty courts seem to make a great deal of sense, but they likewise do not come without substantial costs. Proposals to limit statutes of limitations, alter the burden of proof or otherwise affect how these matters are tried may not be the proper subject for federal legislation, but rather may be the exclusive province of the states.

There can be no dispute as to the ever-increasing premiums doctors must pay for malpractice insurance. Are they justified? I have no idea. But it has always mystified me that I can pay for auto insurance for 30 years, have an accident, make a claim, and then my policy is either canceled or premiums raised to recover the loss. And I ask to no one in particular: What about the premiums that I have paid for the last 30 years! Before we reduce the amounts to which the victims are entitled, or discourage lawyers from bringing such suits, or impose hurdles for bringing such suits, or tell doctors to order fewer treatments and tests, maybe the carriers who provide this coverage should be required to demonstrate that these enormous premiums are justified. Are they losing money or just not making as much profit as they would like? And finally, would any or all of these proposals in concert, make any significant impact on health care costs?