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Medical Malpractice Reform Losing Physician Support

With regard to physicians’ support for medical malpractice reform, the times they are a changin'. These iconic words of Bob Dylan, who has now reached the 8th decade of life, apply to the medical liability crisis that traditionally has been a unifying issue for physicians.

The New York Times reported that physicians in Maine are going soft on this issue, but I suspect this conversion is not limited to the Pine Tree State. Heretofore, it was assumed that physicians as a group loathed the medical malpractice system and demanded tort reform. The system, we argued, was unfair, arbitrary, and expensive. It missed most cases of true medical negligence. It lit the fuse that exploded the practice of defensive medicine. Rising premiums drove good doctors out of town or out of practice.

What happened? The medical malpractice system is as unfair as ever. Tort reform proposals are still regarded as experimental by the reigning Democrats in congress and in the White House. The reason that this issue has slipped in priority for physicians is because our jobs have changed. Private practice is drying up across the country for the same reasons that family owned hardware and appliance stores are vanishing. Look what has happened to independent bookstores? If you want to find one in your neighborhood, you may need to hire a private investigator. Private physician offices are being squeezed out by surrounding medical institutions that, using Ross Perot’s famous phrase uttered in the 1992 presidential campaign, have created a ‘giant sucking sound’ as it vacuums up patients from private doctors’ waiting rooms.

This is only half of the story. Sure, the medical behemoths that employ doctors have cut deeply into private physicians’ patient bases. But, increasingly, physicians are joining these enterprises willingly becoming employees of hospitals and large multispecialty clinics. Understandably, these physicians who are entering their careers do not want the lifestyles of their predecessors. They want time off and a decent family life. They want hospitalists to admit their office patients who need in-patient care. They don’t want to spend hours of uncompensated time each week on paperwork that doesn’t help patients or improve their medical skills. They don’t want the stress of making payroll, hustling for patients or engaging in the fun pastime of trying to convince insurance companies to pay them what they are owed. You get the idea here. They are shifting to a shift work culture, and I certainly understand why.

Can these doctors still get sued? They can, and they will. But, they are not paying their own medical malpractice premiums. Some of the larger medical institutions that employ them are self-insured. Since these physicians are not paying the bill – or any bills – they don’t have the same stake in the game that we private practitioners do. Medical malpractice reform is still on their radar screen, but the blips occur at a higher orbit. They are focused on other issues.

What this means that one of tort reform’s most unified and vocal constituencies will lose interest in the medical liability issue. The crop of physicians entering the profession in the next decade just won’t view medical malpractice reform as a religion. Of course, they will reel when they are unfairly sued, as we do, but it won’t be an issue that commands much of their attention in between lawsuits.

Folk music is prophetic.  Where have all the doctors gone?  Long time past seen. Will medical malpractice reform ever really happen or will it continue to be just blowin’ in the wind?


  1. You make a good point, but won't the changing climate mean that these large health conglomerates will be clamoring for said reform? They can easily throw millions into politician's pockets and will do so if the numbers are in their favor. For example, a few years ago the huge "non-profit" health system where I lived made a profit of $618 million off of 6.8 billion in revenues. They have the cash that private practice doesn't to pay off politicians.Given that, I'd say that malpractice reform is more likely given the consolidation of our health care systems.

    Now, with the current political/corporate climate, the health systems are likely to keep quiet about their dealings. So while malpractice reform might no longer be a hot-button physician issue, it is far from dead.

  2. Appreciate the comment. One of my points is that physicians' zeal for malpractice reform will decline as their job model moves away from private practice. We'll have to see how much push back against the medical malpractice system the large institutions are prepared for. You may be right that they are keeping their powder dry for now.

  3. I think in some ways it may work out better. Doctors are notoriously bad at, or just averse to, organizing together for a common goal. Hospitals and large health care organizations on the other hand, are much better at it. If most physicians are employed, the incentive to reform malpractice does indeed fall to the larger organizations, and as such may be better addressed than it has been up to now.

  4. Good point, Nick. Litigomania has cooled in Ohio since tort reform was passed. We had to elect new supreme court justices to do this.

  5. Hi, Dr. Kirsch. Long time, no see.
    I'm here having linked from your comment at the Health Care Blog regarding that terrible situation (all too common, as I'm sure you know) where yet another patient didn't have an advance directive and the doctor was caught in a trap not of his own making.

    Your post here about "tort reform," which I always read as "liability cap", reminded me of an isolated example I came across a couple years ago at Maggie Mahar's place.

    ...In the mid-70’s, anesthesiologists faced the highest malpractice insurance premiums of any specialty – often as high as $100,000 a year (and those are 1975 dollars, remember.) The Society of Anesthesiology, realizing that this was threatening the viability of many practices, created a national panel which developed a set of specific standards for anesthesia practice.

    They then created a task force of lawyers and academic experts that offered its support to any practitioner who could document that they had followed the standards but was still being sued. Verdicts against anesthesiologists plunged ,and--since plaintiffs attorneys cannot afford to lose regularly –the number of lawsuits declined sharply Insurance premiums fell by 90%.

    More importantly, complications of anesthesia and deaths from anesthesia also declined .The standards not only had the desired result of ending the malpractice crisis in anesthesia, but also made anesthetic management safer and more effective. This created an impressive win for the patients as well as the doctors.

    Evcer since I read that I have wondered why the same principle might not be encouraged across the professional landscape. It seems almost too simple and self-evident to be true. "Who knew?" as they say.

    Not trying to start anything. Just thought I'd toss that into the conversation for consideration.

  6. Physicians were never the driver of this, they were just the faces of the insurance companies and big pharma. Dupes, for the most part, most of which had (have) a meager understanding of how insurance works and with little interest in learning. Their goal was to lower their own insurance premiums, and to avoid ever having to give a deposition. They weren't really interested in changing their own practices/behavior to accomplish these things, so they became mouthpieces for much wealthier entities with real bottom line goals.

    Had they stayed engaged, would it have ultimately benefited physicians? Maybe, although insurers tend to like keeping the money they make, not passing it on to customers. Would it have ultimately benefited patients? All available evidence points to no.

    Really, it's probably best physicians are stepping away. They were losing credibility as people who cared about patients in leading the charge.

  7. "Litigomania has cooled in Ohio since tort reform was passed."

    More accurately, the insurance climate improved and insurers started making more money on their investments so they stopped squeezing the physicians and making them squawk.

    It's unlikely that the number of claims, the amount of payouts, or most importantly, the amount of malpractice in Ohio changed at all. What did happen was those injured the worst now find their cases have been arbitrarily capped.

    Why you support such an outcome given that it doesn't address your central criticism is beyond me. Either your complaint - that not enough people are access the system - isn't genuine, or you don't understand the ramifications of the things you support.


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