A Factual Appraisal of Medical Malpractice and So-Called ‘Tort Reform’

“Tort reform” is the call to arms for people who believe that medical malpractice litigation is responsible for a host of problems and inefficiencies in the medical industrial complex, and that monetary awards for medical mistakes should be limited as a way to right the listing ship of justice.

Baloney. As we’ve repeatedly covered, the myth of medical malpractice reform has been quantified and verified as hardly the way to make anything, much less the practice of medicine or legal rights, better. Now, a new primer from the Center for Justice & Democracy (CJ&D) at New York Law School presents an organized, thoughtful, accessible argument for malpractice lawsuits as the only way to protect your rights.

As reported on Pop Tort, the lively blog produced by the CJ&D, “It took 40 malpractice suits ‘by butchered patients’ … for the New York State Department of Health to finally strip the license of cosmetic surgeon Dr. Robert Cattani, finally finding him to be an “imminent threat to the health and safety” of New Yorkers. An imminent threat. That’s what it takes these days for a state to revoke the license of an incompetent, even dangerous physician.”

“Medical errors, especially those committed by a small number of really bad doctors, is a costly epidemic in this country. … The number of patients [Cattani] injured is exponentially higher than that because only a small number of injured patients ever file lawsuits. And states are doing little about it. Heck, hospitals and their insurers are doing little about it even though they’re the ones paying the malpractice claims. How do we know all this?”

The answer is found in “Briefing Book, Medical Malpractice: By the Numbers.” It’s 70 pages of statistics and quotes, fully sourced, that yield useful information for anyone concerned with medical malpractice and health-care issues.

Part 1 covers medical malpractice litigation. It notes that few injured patients ever file claims or lawsuits, so when cases are filed, they are not “frivolous.” The number and size of medical malpractice claims, lawsuits and inflation-adjusted payouts are low and dropping.

The section quantifies that a small number of doctors are responsible for most malpractice payouts; that even the most incompetent physicians are rarely held accountable by state medical boards; and that physicians greatly misperceive their risk of being sued.

It also points out that successful plaintiffs receive far less than most people think, that high verdicts are almost always slashed and punitive damages are extremely rare.

Another myth busted in this section is that medical malpractice cases are clogging the courts. They’re not, because strong cases settle. And even though lawsuits filed for medical negligence are not frivolous, it’s still difficult for patients to prevail.

The section concludes that the best way to reduce malpractice litigation is to reduce the amount of malpractice.

Part 2 covers costs of medical malpractice, health care and the practice of “defensive medicine,” or when a practitioner overtreats for fear of being sued for missing something.

Numerous studies, it says, have debunked the notion that health-care costs can be saved by depriving patients of their legal rights; “tort reform” has no impact on so-called defensive medicine, which it says, depends on untrustworthy physician surveys, often conceived by lobby groups pushing “tort reform.”

The real reason doctors order too many tests? Profit.

Part 3 covers the supply of physicians and access to health care. It shows how “tort reform” in one notable state-Texas-had no effect on its supply of practitioners, and that it has no effect on the national supply of doctors. Lifestyle and age are the most important factors for doctors deciding where to practice, and in what specialty.

Part 4 covers medical malpractice insurance. It’s a hugely profitable industry despite the fact that premiums have declined since 2006. Again, this is irrespective of whether “tort reform” has been enacted in any given state.

This section also shows how caps on medical malpractice verdicts don’t lower insurance premiums; only strong regulatory laws can do that for doctors and hospitals.

Part 5 covers patient safety. It delineates that medical errors occur in alarming numbers, and at high cost. It identifies hospital departments that are particularly unsafe, and explains that we might not even know how unsafe because, often, major errors are not reported.

It concludes that patient safety suffers because so few injured patients sue. Litigation improves patient safety, and fear of litigation is not primarily why doctors fail to report errors.

We commend CJ&D’s clear, concise appraisal of medical malpractice and litigation, and recommend it to anyone seeking to become informed about the facts, not the fantasy, of this intersection of medicine and law.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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