Medical Malpractice and Tort Reform

Americans need a system that effectively recognizes and eliminates improper and negligent medical practice and efficiently provides just compensation for victims of malpractice. The current system does neither. What’s that, you say? We have a defective medical tort system? Well, I repeat: The current system is woefully inadequate at detecting substandard practitioners and even worse at providing timely compensation to victims of malpractice. What it does provide is dollars for all those legal firms that advertise endlessly on radio, television, city busses, and the back covers of phone books. Let’s get down to specifics.

The Harvard School of Public Health published a series of studies on medical malpractice in the 90’s. In one study, they looked for evidence of patient injury in hospital records of over thirty thousand patients  and found a total of 1133 adverse events of which 288 (1% of discharges) were due to negligent medical care. The researchers then looked at malpractice claims against the hospitals for the same time period and found that of ninety-eight claims only forty-seven corresponded to the independently identified cases. This works out to 0.11 percent of the discharges. Most significantly, only two percent of all cases of injury due to medical malpractice resulted in legal claims.

In a companion study, using the same criteria that were used to identify negligence, the researchers looked at the outcomes of malpractice cases to determine what criteria corresponded to payment to the plaintiff. What they found was discouraging to conscientious practitioners everywhere. The only factor which reliably correlated to payments to the plaintiff was permanent disability. In other words, if the plaintiff was disabled after his or her illness, there was a greater likelihood that the doctor (or more exactly the doctor’s insurer) would be required to pay, whether or not the care had been negligent.  In cases without permanent disability, compensation to the plaintiff was a flip of the coin regardless of the presence of absence of negligence.

To cite one common example of the disability phenomenon, take a baby who is born with significant neurologic defects. He or she will require a lifetime of expensive, specialized care that the family cannot afford. Unfortunately for the obstetrician, the biggest source of funds to pay for that care is the doctor’s malpractice insurance, and juries are quick to sympathize with the family and award large judgments even if there has been no negligence. The same situation arises in lawsuits against trauma centers and neurosurgeons who are involved in the care of patients with severe brain injury. This is why malpractice premiums for obstetricians and neurosurgeons are well into six figures annually. An OB-GYN who accepts a Medicaid patient for maternal care will pay more in malpractice fees for that one patient than he or she will receive in compensation for their services. In my own practice I am frequently tempted to do tests that are not indicated because it would “look bad” if the patient had a bad outcome and I hadn’t done the test. Fear of litigation overcomes good medical practice far more than anyone realizes.

It is clear from these studies that the tort system is grossly defective and litigation needs to be replaced by practice review boards and compensation panels.  This would be more effective in weeding out doctors who are negligent, reducing medical injury, and providing  appropriate and timely compensation when injury does occur. This is a state by state matter. Its resolution is in the hands of our local state representatives and senators, which means it is in your hands.