Sunday, November 20, 2011

Lawyers and Medical Malpractice Reform: Tort Reform Allies for Doctors?

When lawyers talk, I listen. Two attorneys penned a piece on medical malpractice reform in the April 21st issue of The New England Journal of Medicine, the most prestigious medical journal on the planet. Here is an excerpt from their article, New Directions in Medical Liability Reform.

The best estimates are that only 2 to 3% of patients injured by negligence file claims, only about half of claimants recover money, and litigation is resolved discordantly with the merit of the claim (i.e., money is awarded in nonmeritorious cases or no money is awarded in meritorious cases) about a quarter of the time.

This is not self-serving drivel spewed forth by greedy, bitter doctors, but a view offered by attorneys, esteemed officers of the court. Apply the statistics in their quote to your profession. Would you be satisfied if your efforts were benefiting 2-3% of your customers or clients? Would this performance level give me bragging rights as a gastroenterologist? Perhaps, I should attach a new slogan to my business card.

Michael Kirsch, MD


Correct Diagnosis and Treatment in 2-3% of Cases

We would have to build a second waiting room to accommodate the crowds of new patients who would be jamming in to see me.

The current medical malpractice is beyond broken, and it is absurd to debate this. When even lawyers write under their own bylines that medical malpractice reform is needed, then it must be even worse than I thought. I assume that their bylines are true, but perhaps they used pseudonyms for their own protection.

In fairness, the authors did not find persuasive evidence that various medical malpractice reform proposals, some of which I have advocated on this blog, would accomplish the desired objectives of improving care and controlling costs. They examined various reforms including damage caps, pre-trial screening panels, certificate-of-merit requirements, joint-and-several-liability reform and statutes of limitation limits. They advocate continued study and experimentation to achieve meaningful medical malpractice reform.

As a physician, I understand the value of evidence. We should not adopt a medical malpractice reform measure that is shown be ineffective, even if doctors like me favor it. This assumes, of course, that the reform measure has been fairly tested. Debating tort reform proposals is a legitimate discussion and lawyers should be included in the conversations.

Defending the current system, however, is not legitimate. Even lawyers admit that the current system targets but a tiny fraction of patients who have been harmed by medical negligence. What relief do the other 97% of patients receive? In addition, the system targets too many innocent physicians, ultimately releasing most of them after dragging many of us on an agonizing journey. In my office, and probably in your doctor’s office also, litigation fear promotes defensive medicine, which harms patients and costs money.

I will now turn away from tort reform and turn to my morning pleasure, The New York Times. I read a hard copy with ink and newsprint, but I am sure that this anachronism will soon be extinct. I have a new suggestion for their motto, which appears in the top left corner on page 1 of every issue.

“2-3% of the News

That’s Fit to Print”


  1. So you're criticizing the system because not enough people utilize it?

    But you have supported reforms that make it harder for them to access the system. And your insurers also actively try to make it more difficult.

    You're typing out of both sides of your keyboard, Dr. Kirsch.

  2. I criticize the system because it is broken. I contend that 100% of negligently harmed patients have access to the system. Surely, any plaintiff attorney would accept a case of true negligence on a contingency fee, assuming that the damages warranted the effort. The problem is that an overwhelming majority of these cases do not file. In contrast, the majority of cases that are filed have no medical negligence involved. Obviously, the screening process is fatally flawed. Thanks for your ocmment, even if anonymous.

  3. Criticism is cheap and easy. If your complaint is that the system fails because more people don't utilize it, that's fine. But you'll find scant support among the physician community, or more importantly, their insurers, for something to rectify that problem.

    The "reform" efforts you've supported previously certainly didn't address it.

  4. I appreciate your view and wonder why you feel you need to remai anonymous. You are mistaken about your view of what physicians would support. Ideally, a just system would capture all negligently harmed patients and spare all innocent doctors from the outset. Shouldn't this be the goal to arrive for?

  5. Physicians have shown no interest in supporting such a thing, and more importantly their insurers wouldn't let them. Physicians have only supported actions which close the courthouse door or restrict it further to patients, regardless of the merits of their claims.

    You may believe they would do something else, but actions speak louder than words. Including your own in your support of Ohio's "reforms".