Sunday, July 5, 2009

Tort Reform and Medical Malpractice: Ready! Fire! Aim!


We’ve already had a little fun presenting ‘tort for sport’ for your entertainment, describing a system that is nearly exclusively advocated by trial lawyers and their minions. Beyond their tendentious rhetoric, however, are the inescapable hard facts that the tort system misses most cases of true medical negligence and wounds too many physicians as friendly fire casualties.

Let’s put this issue in medical terms. As lawyers so often say, ‘let’s consider a hypothetical’. A pharmaceutical company launches a new medical screening test to diagnose pancreatic cancer at an early stage when the disease is curable. The test can accurately detect the condition in only 5% of cases. Unfortunately, the test causes side effects in most patients, who experience severe fatigue, muscle aches and joint pains. These symptoms last for several months and then gradually resolve. If this screening test were widely adopted as a routine test, then 95% of early pancreatic cancer patients would be missed and most of the country – the healthy folks - would be suffering severe side effects. Would the F.D.A. ever approve such a test that performed so miserably? Let’s hope not. Yet, this is analogous to the tort system that physicians and the public endure.

In fact, when government health experts review screening test data, they are focused on these two specific issues.

What percent of afflicted individuals will be correctly identified by the test?
What percent of healthy individuals will identified as normal and not be harmed by the test?

The current tort system shoots a fusillade of arrows into crowds of doctors. Sure, a few negligent pracitioners are picked off, but what about the rest of us? Why should I be in the line of fire if I haven’t missed the mark? Shouldn't we prefer a tort system that doesn’t just fire, but actually aims?

There are many alternatives to the current system, nearly all of which would be fairer to physicians and the public. Frankly, I think if you put half a dozen reasonable people in a room for an afternoon, they could create a proposal that would remedy most of the tort system’s deficiencies. Of course, as in every other aspect of health care reform, there will be winners and losers. What is our objective? Should we aim for a new system that truly serves the public or retain the one that serves trial lawyers?

If a new medicine or medical test were harming more patients than it cured, would physicians still demand that we use it, just because it served our financial interests? If so, we would be properly chastised and vilified. Yet, the tort system as practiced serves legal interests over justice. Where’s the outrage?

11 comments:

Anonymous said...

The article ends with a rhetorical question: "Where is the outrage?". Most people will agree that the outrage is absent for several reasons: 1) It's hard for anyone but doctors to understand the faults of the current system in depth. This blog is of great help but so far the topic is of minor public interest and fails to generate public passion. 2) Malpractice lawyers have a different view point and they have considerable influence in state legislatures. 3) The public does not know to what extent it is impacted by tort problems.

This does not mean that people are unaware of the problem. Everyone knows about the abuse of the legal system in traffic accidents. Something similar must be going on with medical malpractice.

Some more interesting questions are: a) what can or will our society do in practice to come up with a better tort system, and b) can we as individuals contribute towards that goal?

Alex J.

Michael Kirsch, M.D. said...

The angst and hostility that physicians feel against the tort system is a symptom of a larger disease, as your comment suggests. There is too much litigation and fear of litigation in this country. It stifles innovation and diminishes the vanishing virtue of personal accountability and responsibility. Nearly every business and professional must consider the legal aspects of their plans and decisions, well beyond what should be necessary. The prevailing belief and practice in America is that a bad outcome must be someone else's fault. Remember the absurd legal decision when someone burned herself after spilling hot McDonalds coffee on her lap? Later, other litigants sued a fast food company blaming them for their children's obesity. Fortunately, this case was never heard but it is sad and shocking that a lawyer was willing to argue this case in court. The next time a natural disaster strikes, I expect that someone will sue the Almighty.

Anonymous said...

I believe that the three major reasons for the high cost of health care in this country are:
1. The public believes that they have a "right" to first dollar coverage for absolutely everything.
2. Doctors are intimidated by lawyers and are afraid to miss anything big or small.
3. Doctors are paid to do, not to think.
Until and unless doctors as a whole tighten their belts and just say no, nothing will happen. We could bring this country to it's knees in 6 hours but we're just not willing because we're so just as a group. We'ed rather be slowly crushed, wake up one morning and ask "What happened?"

Anonymous said...

" There is too much litigation and fear of litigation in this country.

There is? How much should there be?

"It stifles innovation and diminishes the vanishing virtue of personal accountability and responsibility."

Really? Couldn't it be said that litigation results from the failure of people to take responsibility for their actions and pay for the harm they cause, and not vice versa?

"The prevailing belief and practice in America is that a bad outcome must be someone else's fault."

Your own post belies this claim, since the vast majority of negligence never results in a claim. So which is it?

Anonymous said...

"Frankly, I think if you put half a dozen reasonable people in a room for an afternoon, they could create a proposal that would remedy most of the tort system’s deficiencies."

Isn't putting a full dozen people in the room exactly how we resolve tort litigation? Why would we let them make new policy but not let them decide cases?

Michael Kirsch, M.D. said...

I thank you for your anonymous comments. How much litigation should exist in this country? Far less than we have now. Too often, litigation is not exercising apppropriate oversight and deterrence, but is stifling progress, innovation and reasonable risk assumption. I maintain that the new ethos here in America is that adverse outcomes are someone's fault. Remember the McDonald's spilled hot coffee debacle? Afterwards, some parents sued Burger King blaming them for their kids' obesity. If a shopper carelessly slips in a store and injures himself, guess who will be targeted?

Anonymous said...

I didn't read the other comments, but I have one of my own --- I agree, very much so, that often the cases that should be argued are not. The reasoning is that there is not enough money in it for a lawyer to take a risk. We simple folf can't fight an 800 pound gorilla hospital bristling with lawyers.

I know of a case where whistlblowing could really help the system, expose a bad hospital administration and perhaps encourage change. But no one will take the case because there isnt enough money in it.

What a shame. It could be that they are so afraid of the hospital that its not worth the risk/pain either.

I think some of what was written in the post that spawned this is absolutely correct -- too many contrived lawsuits and not enough real protection of people.

I have an idea -- if we socialize medicine, lets socialize law too.

Anonymous said...

" How much litigation should exist in this country? Far less than we have now. Too often, litigation is not exercising apppropriate oversight and deterrence, but is stifling progress, innovation and reasonable risk assumption. I maintain that the new ethos here in America is that adverse outcomes are someone's fault. "

Everything in the above paragraph is mere opinion. I have no idea why we should base policy on any of the above.

It would be the equivalent of saying "I maintain that physicians make far too much money" and then advocating that Medicare further reduce their payments based on my opinion.

Anonymous said...

Money? I think when people have a life or death medical problem most would glady sell everything they own for a cure.

David Brett said...

Medical Malpractice is negligence on the part of a healthcare provider that resulted in injury. Medical Malpractice cases may result from misdiagnosis of a disease, failure to provide appropriate treatment for a known disease, or unreasonable delay in treating a condition. The parties involved in a Medical Malpractice case are the Plaintiff, the Medical Malpractice Attorney, the Defense, and Expert Witnesses.The Plaintiff is often the patient, although an administrator or executor of the estate may also act as Plaintiff if the patient died as a result of the injury. Before a patient may file a Medical Malpractice case they must be able to prove that the physician or care provider failed to provide adequate care and this failure was the direct cause of the injury. The Plaintiff must also present proof of damages such as whether there are physical or emotional damages.for more information visit us at:-professional negligence

Michael Kirsch, M.D. said...

David, you have described the working of the system well. I assume that you are an attorney. What is missing is that the current system ensnares too many innocent physicians at the outset. I have heard about numerous cases where physicians were initially sued, when it was patently obvious from a cursory review of the facts that they shouldn't have been involved with the lawsuit. I suspect that every physician has similar anecdotes. Collectively, this would mean that many thousands of innocent physicians have suffered unfairly.

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