Sunday, August 21, 2011

Tort Reform for Medical Malpractice System Another Study Needed?

Medical malpractice reform is in the news again. Of course, for the medical profession, the medical malpractice system is the wound that simply will not heal. For the plaintiffs bar, in contrast, the medical liability system is the gift that keeps on giving. I have argued that the current system fails on four important fronts.
  • Efficiency
  • Cost
  • Fairness
  • Quality Improvement
I admit readily that my profession has not been as diligent as it should be in holding ourselves accountable. We have not been forthright in admitting our medical errors, although can you blame us under the current medical liability construct? There is merit to the argument that tort reform is championed by medical malpractice insurance companies who have an economic agenda in this issue.

I recognize that certain malpractice reform measures, such as caps on non-economic damages, means that some individuals who have suffered severe injuries as a result of medical negligence, would not be adequately compensated. Nevertheless, I support caps because I am convinced it would serve the greater good, even though I would feel differently if I were one of the plaintiffs whose deserved compensation would be curtailed.

Despite the above admissions, the current system is a dysfunctional mess that fails in its mission to provide justice and fairness to the participants. More than physicians' arguments for reform, plaintiffs lawyers' pleass for maintaining the current system is permeated with economic self-interest. In my view, theirs is a weak brief that is transparent with regard to its true motives.

Here are some inarguable weaknesses of the current system.

  • The vast majority of patients harmed by medical negligence are not captured in the current system.
  • Non-partisan analyses confirm what we physicians know instinctively: litigation fear costs billions of dollars in defensive medicine, medical tests ordered to protect us, not our patients.
  • The majority of physicians targeted are ultimately released at some point in the process.
  • By stimulating defensive medicine, the current medical liability system diminishes medical quality, and does not serve as a deterrent against negligent care. Paradoxically, arguing that defensive medicine is negligent could be a potent niche for plaintiff attorneys.
The New England Journal of Medicine (NEJM) recently released a study after analyzing data from a medical malpractice insurance company involving over 40.000 physicians. Here are some highlights.

  • Every surgeon will face a medical malpractice lawsuit at some point in their careers. Is this a good lure to recruit talent into the surgical specialty?
  • About 7.5% of physicians face a medical malpractice lawsuit every year. 'Hey, I haven’t been hit for a few years. Is my number coming up soon?'
  • About 80% of claims against physicians are dropped. Would physicians be satisfied if a medical treatment were effective in 20% of patients?
  • Nearly 20% of neurosurgeons and cardiac surgeons are sued every year. Would you perform well at your job under a 20% yearly threat of being sued?
So, the NEJM has sprinkled some more data on a mountain of evidence that the current medical liability system is broken.  Did we really need another study?   Let's study if patients who are suffering heart attacks or severe pneumonias fare better if they are hospitalized rather than left at home.  Who can divine the outcome of this hypothesis?  After all, since this issue has never been published, who could predict the outcome?  Yes, of course, I am being deliberately absurd.

Some issues are self-evident and don't require a study to determine the obvious conclusion.  Yet, when it comes to medical malpractice reform, the current administration and Democratic legislators reassure us that they are serious about tort reform and want to 'study the issue' further. We hear the euphemism 'pilot program', which means quicksand.  Tort reform is moribund and has been assigned a DNR (Do Not Rescuscitate) status. Defensive medicine, in contrast, is alive and well. 


  1. One could cynically interpret the NEJM findings as follows:

    Neurosurgeons and cardiovascular surgeons traditionally are well-paid. The specialties are highly technical, and so they attract greedy technocrats with no bedside manner. It's a wonder they don't get sued even more. Why don't you doctors do a better job at policing yourselves?

    It's so easy to play that game, and I saved LeisureGuy from having to bother to post. I don't believe it, but you won't convince anyone in the Obama administration that it's not true.

  2. Or maybe cardiovascular and neurosurgery attracts the best and brightest from medical school classes who want to make a real difference in people's lives affected by potentially devastating and fatal illnesses. They get sued more because there's a lot more at stake when a bad outcome occurs, not because they looked cross eyed at the patient or his family. Sure good communication is important, but being like Marcus Welby sure ain't going to protect you when things go bad.

  3. @B.RAD, let me remind you that if something goes wrong, it must be someone's fault.

  4. And in America, when it's someone's fault, they owe you money ... lots of it.

  5. @Tired Resident,hey, you're a resident. You shouldn't be thinking about getting sued yet. You'll have plenty of time to worry about that later. Comment appreciated. Hope to see you on the blog again.

  6. Doctors fail to understand the difference between an unfortunate outcome and negligence. Doctors and hospitals admit to killing 100,000 people each year as a result of preventable errors. These deaths are the fault of someone. Doctors and hospitals need to be held accountable. If the doctor or hospital kills or injures someone, if the doctor or hospital does not compensate the patient, who do you think does? The insurance industry is masterful at shifting the burden. Rather than the medical malpractice insurer paying the claim, the burden is shifted to the public via Medicare or Medicaid.

  7. @anonymous above, I disagree with you. Physicians certainly know the difference between an adverse outcome and medical negligence. I reject also your assertion that "doctors and hospitals admit to killing 100,000 people each year as a result of preventable errors." While any preventable death is a tragedy, the 98,000 of preventable patient deaths per year comes from a single publication years ago that has been challenged. The tone of your comments makes physicians and hospitals seem callous and evil. Reflect on the phrase, " If the doctor or hospital kills or injures someone..." Was this your intent? Perhaps, other commenters to this post can offer their views also.

  8. Most hospital related morbidity and mortality is caused by nosacomial infections I think we all can agree. While It certainly should be the goal of hospitals to strive to lower infection rates, they will never reach zero and assigning blame, strict liability, utilizing never events for reimbursement and using the term "killing" is counterproductive. Hospitals contain people and people contain microorganisms which have been around longer than us and there are many factors that cause nosacomial infections not just poor handwashing.

  9. unless doctors do something egregious like puncture the aorta during surgery, i disagree with the phrase "if the doctor or hospital kills or injures someone ...".

    many people who are sick enough to be in a hospital are there because of a very clear, lifestyle related issue. in other words, they did it to themselves over many years. on my rounds in the hospital, it's usually related to alcohol, smoking, obesity, diet or drugs. if these people don't get discharged from the hospital in good health, can you really say it's the doctor's fault? granted it's the hospital's goal to be able to heal everyone but often times it's not possible and things like hospital acquired pneumonias and MRSA infections happen.

    the general population's attitude of "the customer is always right" has finally made it to health care. there is also zero personal responsibility and accountability for poor lifestyle decisions.

  10. Perhaps, the anonymous commenter would consider revising his or her comment.

  11. Yes you are right, there are some weaknesses in the current medical malpractice law.

  12. Anonymous may need to clarify, not revise. Not all negligence ends in death...but tort reform has capped the settlements for those who live (making it hardly worth suing if you have to repay your private insurer what they paid to fix the physician's mess up)...and even if they kill you isn't it only 30% who get a settlement?

  13. Why would anyone go into medicine now? The risk of losing everything is great. Go into law and become a malpractice attorney - big bucks galore.