How Restrictions on Malpractice Lawsuits Hurt Patient Safety

The New York Times has a good readers’ dialog in its letters to the editor, following up on a study published last week by law professor Joanna Schwartz about how malpractice lawsuits help hospitals correct patient safety lapses.

The dialog has the usual claims by the medical establishment that the malpractice lawsuit system is “broken,” but no realistic proposals from that side about how reforms could be done that would be fair to injured patients. But the other side is also heard, and included is this from a doctor/lawyer who works in Texas, Brant Mittler from San Antonio:

As a physician, former county medical society president and litigator, I find Joanna C. Schwartz’s views very helpful. But they need some explanation in a state like Texas, which has had Gov. Rick Perry-inspired tort reform since 2003.

One aspect of that reform is a “willful and wanton” standard for emergency room negligence, which has led to virtually no E.R. malpractice cases in recent years. In San Antonio, the hospitals arrogantly maintain that they are untouchable. And physicians, on the rare occasions they do go to court, can actually admit negligence, but maintain they were not grossly negligent, and juries will give them a pass.

I regularly turn down E.R. death cases because such cases are not winnable in court even if they have clinical merit. In my experience in multiple lawsuits against hospitals in San Antonio, I have not seen one instance in which hospitals have admitted error, admitted any remedial measures or admitted that the physicians involved were subject to any peer review or quality assurance actions.

Tort reform in Texas has resulted in, as one appellate court put it, a “lower standard of care.”

If you have to go to an emergency room in Texas, watch out!

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