Let’s call it what it is. What health care providers, their insurers and some politicians propose in the name reducing medical costs is not tort reform. It’s claim suppression. A genuine effort at reforming how medical malpractice claims are handled would include reforming the entire system, but tort reformers speak only of capping damage awards and attorney fees, which will benefit only providers and their insurance companies. Patients will be harmed by the change. (Note: my firm doesn’t handle medical malpractice claims.)
The American Medical Association (AMA) argues that tort reform is necessary to reduce “defensive medicine.” Physicians lament that the threat of litigation causes them to order more tests than are actually needed. Doing so minimizes second guessing, which lowers their risk of liability but increases costs. It’s an easy position to sell and politically expedient.
Though defensive medicine supposedly results in billions of dollars in unnecessary costs, the figures are based on anecdotal information. Still, the concern is prevalent, and it raises ethical issues—for physicians.
The AMA Code of Medical Ethics prohibits unnecessary diagnostic tests conducted “for the physician’s financial benefit.” So, is it unethical to order a test for the primary purpose of minimizing the physician’s risk? The code also states that “the relationship between patient and physician is based on trust” and requires physicians “to place patients’ welfare above their own self-interest.” When ordering tests, do physicians advise their patients that the test is likely unnecessary and being ordered to lower the physician’s anxiety about litigation? Regardless, how many of these tests result in positive findings?
Rather than dealing with these issues and others that impact costs, the cross-hairs are placed on damage awards and attorney fees, with the ultimate goal of reducing the number of malpractice actions. Very few medical errors now result in claims. If damage awards and fees are capped, then attorneys will have to be even more selective about the cases they take, and fewer claims will be prosecuted.
None of this is good for patients and their families, especially with the prevalence of medical errors. The Institute of Medicine’s 1999 report titled “To Err is Human,” which raised awareness about patient safety and promoted safeguards systems and mandatory reporting of medical errors, estimated that 44,000 to 98,000 people die annually from medical mistakes. Medical News Today puts the number at 195,000 per year for 2000 through 2002.
Even more worrisome is that many patients may not know their injury was caused by malpractice. Arthur A. Levin, who helped draft the institute report, maintains that hospitals report only a small percentage of their mistakes. The Center for Disease Control echoes this conclusion. Health Affairs reported that approximately one-third of the nearly 1900 physicians surveyed in 2009 did not completely agree with the idea that serious medical errors should be disclosed to patients. Unlike highway or aviation-related deaths, medical deaths are not subject to public investigation.
Tort reformers claim that physicians are subject to frivolous claims by attorneys who cavalierly bring suit on the barest of evidence. Stories are told about blameless doctors who chose to settle immediately rather than fight the meritless claims filed against them. This is the stuff of urban folklore. Medical malpractice cases are never settled quickly.
Challenging a physician in court is akin to girding for battle. The economics are such that only the most serious cases can be brought. Physicians are backed by insurance companies, and those insurance companies hire highly capable, experienced counsel to defend their physicians. Malpractice cases consume hundreds of hours of time. The fee for the patient’s attorney is contingent on his client prevailing, and the attorney generally has to front between $50,000 and $100,000 in expert witness fees and other costs. Physicians may settle, but only after the key issues have been explored through discovery, which may take years.
Litigation is painful, but litigation promotes accountability, and all professionals—including lawyers—are subject to being haled into court for malpractice. The way to avoid malpractice claims is to do the right thing all the time and treat patients with respect. Then again, the entire system could benefit from change. Lucian L. Leape, M.D., of the Harvard School of Public Health, advocates transparency and public reporting of adverse results. In his book about human error, Whack a Mole, David Marx suggests a no-fault system for medical errors.
Remarkably, the tort reformers don’t address reforms that might help the patients. Don’t patients matter more than the costs that tort reformers talk about? Certainly, the tort reformers aren’t saying that money matters more than life. Or, are they?
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