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Cynthia Tucker

The facts about medical malpractice

12:12 pm September 23, 2009, by ctucker

For decades, a sharp ideological divide has existed around the issue of medical malpractice, with doctors insisting that phony claims drive up the cost of health care, and trial lawyers insisting that patients deserve compensation when they are harmed by bad docs. In today’s New York Times, columnist David Leonhardt offers an excellent exploration of the subject, with ammunition for both sides.

But the facts may not be what you think. Though the idea of runaway juries presenting plaintiffs with excessive awards is embedded in the convention wisdom, such awards are very rare, Leonhardt points out.

After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim. For every notorious error — the teenager who died in North Carolina after being given the wrong blood type, the 39-year-old Massachusetts mother killed by a chemotherapy overdose, the newborn twins (children of the actor Dennis Quaid) given too much blood thinner — there are dozens more. You never hear about these other cases.

He also cites a Robert Wood Johnson Foundation study showing that medical errors happen more frequently here than in other rich countries.
On the other side of the debate, it seems that physicians have deep-seated fears about being sued that do lead them to order excessive tests, in some cases.

The fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment. Amitabh Chandra — a Harvard economist whose research is cited by both the American Medical Association and the trial lawyers’ association — says $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate.

It’s certainly worth finding a way to get rid of that waste since every little bit helps. But it’s also worth remembering that it’s no more than three percent.

Katherine Baicker, another economist who served in the Bush administration, says, “reforming the malpractice system wouldn’t be a bad thing, but it wouldn’t solve the crisis of mounting health costs.”

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13 comments Add your comment

Joan

September 23rd, 2009
12:20 pm

I have known a couple of very excellent doctors who have been sued for malpractice (both “won”). The problem with the suits are that the take the doctor away from his patients and do make him fearful that he is in an adversarial situation with his patients so that he has to exercise extra caution in the matter of tests. What is wrong with requiring that lawsuits pass some kind of “ha ha” test before they are brought? Or, if they don’t that the plaintiff risks having to pay the defendant’s cost of defense? Then, only those cases truly though meritorious would be heard.

Tommy Lee Maddox

September 23rd, 2009
12:36 pm

The ha ha test is found in O.C.G.A. 9-11-4.1. Before a malpractice case can be filed, the Plaintiff must obtain an affidavit from a similar professional stating that the Defendant did something below the standard of care. That affidavit must be filed with the complaint for damages.

As for taking the Doctor away from patients, he might spend a couple of hours with defense counsel, then a couple of hours being deposed. If the case goes to trial, the Doctor might spend a day or two in Court. Of course, the patients would be covered by some other doctor. No problem there.

If a case is bogus, it will never make it to Court due to the fact that it must first pass muster under the Code. If it does get to trial and it becomes apparent that the Plaintiff has tried to pull a fast one over the Court or the Defendant, then the Court is empowered to hammer both the Plaintiff and Plaintiff’s counsel with defense costs.

There are plenty of safeguards out there for the physicians as to Plaintiffs. What is not out there is a safeguard against physicians’ insurers. They are the main problem in the equation.

Tommy Lee Maddox

September 23rd, 2009
12:39 pm

Ooops – that’s O.C.G.A. 9-11-4.1

Tommy Lee Maddox

September 23rd, 2009
12:40 pm

9-11-9.1 – My 9 key has gone nuts.

David from WI

September 23rd, 2009
1:00 pm

Defending frivolous lawsuits? I know, instead of making such arguments why not go and interview a dozen or so MDs and find what THEY think about malpractice insurance rates?

Obama even talked about defensive medicine what do you suppose was speaking of?
Oh this is great trial lawyers are now the ‘enlightentd ones’ too I suppose.

Tommy Lee MDs make money if they are TREATING patients not if they spend time in court defending themselves against frivolous lawsuits.
A honest lawsuit is fine to sue over but there IS a growing problem of persons encouraged to sue for any little thing and guess who makes the most money?

Wow I thought the far left was against an industry that is in it for the money? I suppose it depends who is making the money?
Oh I guess you will not look at the malpractice insurance companies either. They are insurance companies too shouldn’t you be looking at how EVIL they are too?
No?

jconservative

September 23rd, 2009
2:36 pm

Nice column. I gather the bottom line on your column & on the Leonhardt article is that medical malpractice, malpractice insurance, & doctors reaction to both are a dollar problem but not a significant dollar problem when compared to the whole.

My reading is that it would be the insurance company that would oppose any reform. They are apparently raking in big bucks from doctors but paying out little in the way of claims.

Am I wrong?

Jimmy Pritchard

September 23rd, 2009
3:39 pm

As usual, Cynthia doesn’t bother to do any reporting on facts that don’t agree with her thesis. Thanks to the free reign of the ambulance chasers, every doctor in America is saddled with a gigantic bill for malpractice insurance, every single year, before they see a single patient. But hey, those doctors make too much already, right? And somebody’s got to come up with all that money the trial lawyers ship off to the Demorcatic Party–might as well be you, doctors and patients!

funnything

September 23rd, 2009
4:07 pm

how about we make it a goal of the readers to post less than 10 comments on cynthia’s blog. then, maybe just then, the ajc will replace this waste of space with someone that writes with a little more knowledge of the facts.

Tommy Lee Maddox

September 23rd, 2009
4:12 pm

Back when St. Paul did medical insurance, they were one of the big proponents of malpractice reform. The year they started up with this mess, they paid out claims with only three percent of the premiums taken in from the doctors.

What did they do with the other ninety-seven percent?

It’s not the lawyers – oh no no…

lovelyliz

September 23rd, 2009
4:48 pm

Remember when we were sold on HMO’s as the great cost saving alternative to traditional insurance? The only ones who saved anything were the insurance companies and their executive compensation packages. Insurance keeps getting more and more expensive.

We are now being sold on another fairytale only this time it’s the evil trial lawyers and their equally evil, ungrateful and greedy patients who are bringing down the doctors and poor, pitiful, downtrodden malpractice insurance companies. I am not saying that trial lawyers can’t be a trial, but given that frivolous lawsuits are often thrown out of court, doctors can seek compensation for such, the 3% is a molehill against the mountain that is the cost of healthcare, and the less than stellar results of tort reform that exists in several states, don’t expect me to buy what the neo-cons backed by the insurance industry are trying to sell us this time.

Like the HMO “savings” that never materialized in the consumers’ wallet, tort reform won’t save one doctor one single $ unless you regulate what malpractice insurance companies can charge doctors and require them by law to pass on any savings. The only results from tort reform will be patients with inadequate settlements, bad doctors who stick around way too long, good doctors still paying outrageous malpractice premiums and insurance executives who get even bigger bonuses.

Josey and the Kittycats

September 23rd, 2009
10:04 pm

We want Puubic Opshun! We want Puubic Opshun! We want Puubic Opshun! We want Puubic Opshun! We want Puubic Opshun!

Where is she? She could tell us everything we need to know about ANYTHING!

Jack Meihoff

September 24th, 2009
1:56 am

Ms. Tucker has failed again to point out all the facts. She mentions the Robert Wood Johnson Foundation. Well, that same foundation issued an article in June 2009 entitled ‘The Role of Medical Liability Reform in Federal Health Care Reform’ which states:

“Escalating health care costs are significantly tied to malpractice liability costs. The authors cite that a decrease of total health care spending by 1 percent would lead to a savings of $22 billion per year.”

If medical malpractice suits are such a small portion of health care costs, why would this respected organization recommend bundling medical malpractice reform with any federal health care reform legislation?

By the way, Public Option, shout all you want, it AIN’T in there…

J. O'Hare VP med mal claims

September 25th, 2009
1:23 pm

I have adjusted med mal claims since 1985. A few observations re medmal over the past 25 years, followed by solutions. Having investigated and resolved thousands of complex med mal claims since 1985, I see things from the marrow out. Please keep in mind that I defend the doctors when they are defensible and pay when it is clear that they were negligent.
My points thru observation since 1985:

- 15% of the docs cause 82% of the med mal. They can be targeted for discipline or removal. We do it at PIC. Check our numbers.
- Defense costs and contingency fees eat up 50-60% of the total costs associated with a claim. Not enough to the injured party.
- Docs never ever get a jury of their peers and are vunerable to the sex of a edge of your seat Hollywood courtroom scene.
- Arbitration improvements could move claims quicker, provide a peer group, and get the most money to the injured party. Each side picks one, and in turn , those selected pick a third. Each side gets an expert. Done in a day.
- That plaintiff firms are genuine well meaning advocates, but will never argue for a solution to med mal at their own expense. I understand that, and it’s the 800lb gorilla. There is a lot of money to be made.
- That a cap for non economics is imperfect , but some measuring stick is needed. Weighing pain is similar to weighing smoke. A subjective concept compensated via objective means- cash. Without a cap , infinity enters and ruins every analysis / equation.
- In 25years I have only paid aggregate limits on 3 docs, all 3 were plastics. All injuries that fell into the smoke category ( subjective damages), no measuring stick to weigh the P&S. Economics can be measured, future care can be measured.
- Meritorious claims should be settled at a fair cost, preferably structured. The patient should be made whole, not a lotto winner.
- Good ideas are never immune from compromise, so we end up shuffling the same deck of cards and fail to solve the issues.
- Defensive medicine- the worst that happens is that you end up with a diagnosis. The costs are the HMO’s fault.

What needs to be changed?

Re meaningful reform :

– Get rid of joint and several liability, as those with insurance pay for those that do not.
– Loser pays the court costs. Why not? creates frugality, stimulates settlement..
– expert affidavits prior to every suit – creates integrity.
– a frivelous suit statute with fines for claims without merit.
– Cap only the pain and suffering cause of action, the amount can be debated. Neither side can argue what is too much or too little. It is a subjective concept with no objective ruler. There is no scale for pain. Money is a poor ruler. How about a $500k max?
– How about one expert per defendant for each side to handle liability, causation and damages.
– How about examining the definition of “peer”, look it up in any dictionary of your choice. docs dont get peers, you know, similiar rank and station in society. Arbitration fixes this as well.
– How about structuring payouts, lets say everything over 250k.
– How about all Docs need PL insurance to practice. Just like we all need car insurance to drive? This puts more money in the pool, bringing down premiums.
– Mandatory mediation at close of discovery, if arbitration cant be reasoned.
– Have a sliding scale of contingency fees.
– re examine vicarious liability, ostensible agency etc.
– All Docs need a minimum of $300k coverage to treat patients. We need insurance to drive a car don’t we. Medicine= more important!

Change the forum
Does the plaintiffs bar really want to fix med mal? Not a chance. When the total cash spent on any given case yields about 40 % actually getting to the injured party, The 60% comprises contingency fees, experts and legal fees for both sides. Big money. That 60% could be trimmed significantly by changing the forum for this specialized area of negligence = arbitration. Save a quick 30% while the injured gets the same cash, or more. Read on , it gets better.
Lets be honest- does any doctor get a jury of his/her peers? No, many jurors get their medical training by watching House. Arbitration is a panel of docs of some sort- you know, equal station and rank in the community, the definition of peer. No way a lay jury gets the complexities and subtleties of causation, or actual negligence. Put a podiatrist or chiropractor on the panel, certainly peer material.
Are verdicts amped up by the Hollywood antics used to sway emotions? You bet it does. Another reason to get out of the courtroom and into the arbitration forum. So what would we get? Leveled?
The Doc gets a jury of his peers ( leveling the playing field), the hollywood factor that amps up verdicts goes away, the injured party gets the money quickly, and most of it, expenses plummet, premiums come down, access to policies increase along with the limits, defensive medicine decreases, policies become affordable, the cost of healthcare drops, the courts get declogged, time is saved along with big dollars, while the attorneys still make a nice living. I could go on !! Good idea? Tell me it is not!
What do we get from arbitration? :
In arbitration the injured party gets the money and quickly, premiums come down, defensive medicine plummets, policies become affordable, More docs get insurance, the cost of healthcare drops, the courts get declogged, peers judge peers, while the attorneys still make a nice living. I could go on re the benefits or arbitration!!
Good ideas never get any traction, lets just shuffle the same deck of cards. Change the forum. Be careful of those that scream for change, when the translation of their argument is :to preserve and further maximize their own coffers.
Now speaking as a citizen – it seems that most pols and pundits look at a car with 4 flat tires and suggest an oil change for the remedy!

How is it that a guy with 2 mil in his coffer from HMO’s is the one that writes the new HC plan. It use to be the mere appearance of impropriety was enough to step away. If the bill doesn’t make the HMO’s sweat, it isn’t any good.