Doctors Aren’t Afraid of Being Sued but Still Want to Limit Your Malpractice Rights

You would think with yet another objective, substantive study showing that defensive medicine – doctors overtreating patients for fear of being sued for malpractice – represents only a tiny fraction of health-care spending that advocates of so-called “tort reform” would get the message.

They do get the message, but they still want to yank your rights away.

Tort reform, as readers of this blog know, is the misguided and disingenuous effort to reduce the monetary damages one may receive in the case of medical malpractice. Supporters of the idea like to say it will take care of the problem of frivolous malpractice lawsuits.

But “‘Frivolous lawsuits,'” wrote Michael Hiltzik in the Los Angeles Times, “[are] a problem that exists mostly in the minds of conservatives and the medical establishment.”

According to the study, published in JAMA Internal Medicine, defensive medicine accounts for only 3%, at the most, of U.S. health-care costs. That adds up to about $78 billion, which is a lot of money, but considering that the total cost of U.S. health care every year is estimated to be about $2.7 trillion, it should hardly be fueling the move to limit the rights of harmed patients.

In addition to curbing your ability to recover damages from malpractice, tort reform actually could increase other costs because limiting court system oversight could boost the incidence of medical mistakes. It costs a lot of money to clean up medical errors, assuming you even can.

The JAMA study authors noted that even doctors might be overestimating the prevalence of defensive medicine. Practitioners might order many procedures partly as a defensive habit, but mostly they do so for what they believe are legitimate diagnostic or therapeutic reasons. So tort reform would address the things they order solely because they fear litigation, a tiny percentage of the total.

Like many people who see the brazen move to take away legal rights, Hiltzik wrote, “Tort reform has seldom been about reducing healthcare spending. For Republicans, it’s about de-funding a bloc of reliable Democratic Party supporters – trial lawyers.”

Always a popular target. Who hasn’t heard that the only reason lawyers want to represent you is for their cut of a malpractice judgment? Who hasn’t heard lawyers who represent people harmed by malpractice referred to as “ambulance chasers”?

The conservative agenda, Hiltzik claimed, is what drives the suppression of malpractice lawsuits despite the evidence that its impact on health-care spending would be small. It’s not about righting a wrong, it’s about punishing people you don’t agree with. And tort reformers even admit as much!

Avik Roy, a conservative health-care pundit, acknowledges that defensive medicine accounts for only a tiny percentage of spending, but still wrote, “nonetheless, reform is warranted … [because] the U.S. health care-system is uniquely vulnerable to frivolous malpractice lawsuits.”

What does Roy have against math? Science? Proof that his ideas are wrong?

“The minimal impact of defensive medicine on healthcare costs demonstrates the injustice of the stringent limits on malpractice lawsuits advocated by doctors, insurance companies and Republican policymakers,” Hiltzik wrote.

He pointed out that capping the amount of money a harmed patient is legally allowed to receive for “pain-and-suffering” is a common ploy among tort reformers – see our blog, “Florida Stands Up to Anti-Consumer Malpractice Cap.” Such tactics discourage people from filing malpractice lawsuits to the benefit mostly of insurance companies. And their impact, Hiltzik wrote, “falls disproportionately on women and families with infants, because their economic damages, which remain subject to jury awards, are hard to estimate and typically underestimated.”

Hiltzik repeats a truism we, too, regularly write about; that “frivolous lawsuits,” or cases that should never have been brought, are significantly rarer than the tort reform crowd would have you believe. That’s because the bar is high for plaintiffs to prove that the harm done to them was the result of negligence, so most people who might have a claim don’t pursue it because of the slim chances it would result in a monetary judgment in their favor.

And even when people have legitimate claims, they often can’t pursue them because attorneys know how slim their chances are of winning, and because they work for a percentage of a successful claim, they can’t take cases they otherwise would.

A bigger problem than frivolous lawsuits, Hiltzik said, is that genuinely injured patients can’t get justice “because the courthouse doors have been shut to them. The victims there are often lower-income or unemployed patients.”

The issue is particularly acute in California, as the upcoming election includes a proposition for voters to lift an antiquated, unfair medical malpractice cap. (See our blog.) It’s all about the Medical Injury Compensation Reform Act (MICRA), which Hiltzik referred to as “the state’s shame.” In 1975, MICRA capped noneconomic and nonmedical damages in malpractice to $250,000. In today’s dollars, that’s about $57,000.

To remain current with inflation, the amount should be about $1.1 million, and that’s what Proposition 46 proposes. (Sadly, as Hiltzik and many other advocates of fairness observe, the MICRA increase proposal is accompanied by a silly plan for drug testing of doctors.) Roy proposes that noneconomic damages for patients whose health care is subsidized by the Affordable Care Act (that is, by any of the federal or state health care exchanges established by “Obamacare”) be capped at the same $250,000 it has been for more than a generation. His cap also would apply to anybody with insurance through Medicaid, Medicare or any other federal program.

“Why them?” Hiltzik wondered. “Apparently only because they’re within the grasp of federal law. Roy all but acknowledges that there’s no legitimate economic reason for this punitive approach. It won’t save a significant amount of money. It won’t change the direction of healthcare costs. It’s just nastiness, and as is usual … punishes the most defenseless members of society. Healthcare policy should do just the opposite.”

Yes, it should. And so should the justice system.

To get the facts about medical malpractice litigation served up as thoughtful entertainment, visit PopTort, a civil justice blog sponsored by the Center for Justice & Democracy at New York Law School. You can review the center’s new briefing book, “Medical Malpractice – By the Numbers!”