Jim Stillman
Randy InmanThe Truth about “Tort Reform” and the Medical Malpractice Crisis that isn’t
May 16th 2008 10:44
Some time ago, I wrote an article on another site criticizing physicians for accepting gifts from pharmaceutical manufactures. I prefaced my writing with an explanatory note which needs to be repeated:
Speaking of ethical responsibility, full disclosure demands that I state that my daughter and son-in-law are physicians, each of whom demonstrates the finest aspects and practices of his and her profession. I, personally, have an internist/family doctor who is competent, eager to answer every question that I have, after reading WebMD, and a cardiologist who has seen me through by-pass surgery and six years of making sure I do not have to be "opened up" again. I freely acknowledge that, as a patient, I must try their respective patience.
I should also make clear that I am a retired attorney, although not at all involved with malpractice or personal injury cases.
I heard a political advertisement today, suggesting that only Senator McCain will act to “fix the malpractice crisis” and defeat the attorneys who “prey upon doctors and are the reason for unaffordable health care”. My first instinct was to question the role of the President, regardless of his or her identity, in eliminating the alleged “crisis”; my second instinct was to question the existence of a crisis at all.
My daughter and son-in-law would be the first to assert that malpractice insurance premiums take a large bite from their earnings. Moreover, the anecdotal evidence shows that a substantial number of physicians are withdrawing from practice because of the perceived risk of suit.
While I sympathize with these fine physicians, I suggest that the fear of suit and of bankruptcy is a fiction and promulgated by the insurance companies which raise premiums based on the perception and not reality.
There are two aspects to this situation. First, what are the societal benefits of compensating those injured by the negligent actions of another? Second, what should be the consequences of acting in a reckless and dangerous manner?
The concept of financial compensation for injuries was a giant leap into civilized society. In the alternative there is the "Bop" theory. If I Bop you and cause harm, you have the right to Bop me, then my family retaliates and Bops you and your family and, before you know it, World War MMCV. The Bible demands that injuries be addressed, "Eye for eye, tooth for tooth." This simply means that the recompense should be proportionate to the injuries sustained. Who is to determine the amount of recompense? The worst mechanism conceivable, except for any other: the judicial system and the trial jury.
Several hundreds of years ago, it was established that insurance could be procured to ensure that the negligent and incompetent would have resources with which to indemnify against loss to others. Thus, society would be protected and the injured could be made whole. The concept was never designed to protect the incompetent and grossly negligent professional from the consequences of his or her actions.
Let us suppose a few incidents.
First, a pharmacist parties late into the night and arrives at work suffering from blinding headaches, shaky hands and a generally sour attitude. He fills a prescription calling for 40 mg tablets with ones having strength of 400 mg. The patient/customer takes the incorrect medication and becomes gravely ill and, eventually, dies.
Second, an attorney is retained by a group of homeowners to pursue a claim against a chemical company that has, intentionally or without any real concern for the consequences, dumped toxic materials over the landscape. A large number of children have developed cancer and will surely die. The attorney does nothing with the file because of simple inadvertence or because he simply doesn't know what to do, and, when he finally files suit, the statute of limitations has expired and all claims for damages are for naught.
Third, a builder adds an extra room to an existing home. Either to save money or simply because he was distracted, the roof to the addition is not securely installed. At the first storm, the roof flies off the extra room and all furniture in the room is severely damaged by water. Moreover, the roof lands in the yard next door, striking a child who suffers permanent injury.
Finally, because he rushed into the operating room, relying on the preparation work performed by normally careful staff, or because he had been on duty at the hospital for twenty hours without a rest or break, a doctor amputates the wrong leg or fails to examine a patient carefully and misses skin cancer or, exhausted from days and evenings "on call", makes another gross error that causes substantial injury.
In the first three examples, there is nearly universal acceptance that the pharmacist, attorney or builder should be compelled to indemnify the losses caused through negligence, carelessness, inadvertence or ignorance. In the case of a physician, however, the rules have been dramatically changed.
Whereas the pharmacist, the attorney and the builder are subject to a jury’s determination as to the amount of damages that will restore the injured parties to his or her pre-injury condition, the person suffering loss through the negligence of a health care provider is limited in the amount of the recovery, by statute, a limitation not related to the degree of malpractice, the extent of the injury and loss or any non-arbitrary standard.
Why are health-care providers treated so kindly? Are frivolous lawsuits responsible for the increased cost of malpractice insurance premiums? What about a lawsuit that is not frivolous?
In a later post, I’ll demonstrate that medical experts have reported in reputable publications that the effect of frivolous suits is minimal and that, notwithstanding the political hype and scare tactics, mostly created by insurance interests and those who just hate lawyers, a substantial number of instances of gross medical negligence and, sometimes, sheer incompetence are left unaddressed.
Yes, there is a malpractice crisis and it is one which should be honestly addressed. This will require candid self-examination by both attorneys and health care professionals of their respective improprieties,
Speaking of ethical responsibility, full disclosure demands that I state that my daughter and son-in-law are physicians, each of whom demonstrates the finest aspects and practices of his and her profession. I, personally, have an internist/family doctor who is competent, eager to answer every question that I have, after reading WebMD, and a cardiologist who has seen me through by-pass surgery and six years of making sure I do not have to be "opened up" again. I freely acknowledge that, as a patient, I must try their respective patience.
I should also make clear that I am a retired attorney, although not at all involved with malpractice or personal injury cases.
I heard a political advertisement today, suggesting that only Senator McCain will act to “fix the malpractice crisis” and defeat the attorneys who “prey upon doctors and are the reason for unaffordable health care”. My first instinct was to question the role of the President, regardless of his or her identity, in eliminating the alleged “crisis”; my second instinct was to question the existence of a crisis at all.
My daughter and son-in-law would be the first to assert that malpractice insurance premiums take a large bite from their earnings. Moreover, the anecdotal evidence shows that a substantial number of physicians are withdrawing from practice because of the perceived risk of suit.
While I sympathize with these fine physicians, I suggest that the fear of suit and of bankruptcy is a fiction and promulgated by the insurance companies which raise premiums based on the perception and not reality.
There are two aspects to this situation. First, what are the societal benefits of compensating those injured by the negligent actions of another? Second, what should be the consequences of acting in a reckless and dangerous manner?
The concept of financial compensation for injuries was a giant leap into civilized society. In the alternative there is the "Bop" theory. If I Bop you and cause harm, you have the right to Bop me, then my family retaliates and Bops you and your family and, before you know it, World War MMCV. The Bible demands that injuries be addressed, "Eye for eye, tooth for tooth." This simply means that the recompense should be proportionate to the injuries sustained. Who is to determine the amount of recompense? The worst mechanism conceivable, except for any other: the judicial system and the trial jury.
Several hundreds of years ago, it was established that insurance could be procured to ensure that the negligent and incompetent would have resources with which to indemnify against loss to others. Thus, society would be protected and the injured could be made whole. The concept was never designed to protect the incompetent and grossly negligent professional from the consequences of his or her actions.
Let us suppose a few incidents.
First, a pharmacist parties late into the night and arrives at work suffering from blinding headaches, shaky hands and a generally sour attitude. He fills a prescription calling for 40 mg tablets with ones having strength of 400 mg. The patient/customer takes the incorrect medication and becomes gravely ill and, eventually, dies.
Second, an attorney is retained by a group of homeowners to pursue a claim against a chemical company that has, intentionally or without any real concern for the consequences, dumped toxic materials over the landscape. A large number of children have developed cancer and will surely die. The attorney does nothing with the file because of simple inadvertence or because he simply doesn't know what to do, and, when he finally files suit, the statute of limitations has expired and all claims for damages are for naught.
Third, a builder adds an extra room to an existing home. Either to save money or simply because he was distracted, the roof to the addition is not securely installed. At the first storm, the roof flies off the extra room and all furniture in the room is severely damaged by water. Moreover, the roof lands in the yard next door, striking a child who suffers permanent injury.
Finally, because he rushed into the operating room, relying on the preparation work performed by normally careful staff, or because he had been on duty at the hospital for twenty hours without a rest or break, a doctor amputates the wrong leg or fails to examine a patient carefully and misses skin cancer or, exhausted from days and evenings "on call", makes another gross error that causes substantial injury.
In the first three examples, there is nearly universal acceptance that the pharmacist, attorney or builder should be compelled to indemnify the losses caused through negligence, carelessness, inadvertence or ignorance. In the case of a physician, however, the rules have been dramatically changed.
Whereas the pharmacist, the attorney and the builder are subject to a jury’s determination as to the amount of damages that will restore the injured parties to his or her pre-injury condition, the person suffering loss through the negligence of a health care provider is limited in the amount of the recovery, by statute, a limitation not related to the degree of malpractice, the extent of the injury and loss or any non-arbitrary standard.
Why are health-care providers treated so kindly? Are frivolous lawsuits responsible for the increased cost of malpractice insurance premiums? What about a lawsuit that is not frivolous?
In a later post, I’ll demonstrate that medical experts have reported in reputable publications that the effect of frivolous suits is minimal and that, notwithstanding the political hype and scare tactics, mostly created by insurance interests and those who just hate lawyers, a substantial number of instances of gross medical negligence and, sometimes, sheer incompetence are left unaddressed.
Yes, there is a malpractice crisis and it is one which should be honestly addressed. This will require candid self-examination by both attorneys and health care professionals of their respective improprieties,
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