The Truth About Medical Malpractice Lawsuits

The Truth About Medical Malpractice Lawsuits
by Scott D. DeSalvo

"The first thing we do, let's kill all the lawyers"
- Shakespeare's Henry VI

Since before even Shakespeare’s time, regard for lawyers has never been high in the public eye...that is, until one is in dire need of legal representation. The insurance industry is taking full advantage of this public misunderstanding of the vital function of lawyers in American society to propose ineffectual and self-enriching tort reform. The charge for tort reform is being lead on the back of the issue of medical malpractice damage caps.

Currently, any lawsuit against a doctor or medical services provider MUST be brought along with a certified statement from a doctor that he has reviewed all of the pertinent medical records and case information, and that the reviewing doctor holds an opinion to a reasonable degree of medical certainty that the accused doctors’s medical service was not merely a "bad outcome," but instead, rises to the level of medical malpractice. Medical malpractice is generally defined as care which constitutes an act or omission that even a minimally-qualified doctor would not have rendered. By definition, bad outcomes from risky procedures do not qualify.

No other person or entity being sued in any other type of lawsuit – from car accident, fall-down accidents, products liability cases, contract disputes, or even violations of Constitutional Rights and discrimination suits – receives this "report first" procedural protection afforded to doctors. Damage caps are yet another procedural hurdle the insurance industry wishes to have placed in the way of wrongfully - and catastrophically - injured patients seeking a reckoning.

Currently, in jurisdictions without damage caps, a jury of twelve (as provided in Amendment VII to the U.S. Constitution) listens to all of the law and all of the facts of a particular case, including damages testimony from the injured person, of the plaintiff’s treating doctors, of life-care planners who have calculated the precise amount of money that the crippled plaintiff’s future care is likely to require, and of economists who have calculated, down to the penny, the amount of money the injured person has lost by no longer being able to work in their former capacity – or if the injury is severe enough, at all.

Armed with knowledge, and after hearing all of the defendant’s exculpatory and damages-reducing evidence, the jury retires and, first, decides whether the doctor’s conduct was not merely mistaken, and the harm not merely an innocent "bad outcome" but instead, rises to the level of medical malpractice. If, and only if, a jury makes this determination, it must next consider damages, or, how to fix what can be fixed, help what can be helped, and make up for what cannot be helped or fixed.

Already having a pre-suit procedural safeguard to ensure that only cases with merit are filed against doctors, the insurance industry has now turned its attention to the damages aspect of medical malpractice lawsuits. Instead of allowing the twelve people with the most information and knowledge of the case (the jury) to fix a precise amount which is necessary to compensate the wrongfully injured person, the insurance industry is lobbying hard for caps on damages. In other words, instead of leaving a determination on damages up to the people who have heard exactly how and how much the injured person has been damaged, Big Insurance prefers that a silver-spoon legislature makes that decision.

Instead of relief tailored to the particular case, and a jury left to its constitutionally-mandated province, Republicans and their insurance-industry benefactors seek to impose a big-government, one-size-fits-all answer. They don't trust juries made up of people like you, your friends and your neighbors to decide based on the facts and evidence in each individual case.

Damage caps do not stop frivolous lawsuits. Caps only affect the cases in which a jury of twelve people heard all the facts of the case and decided the injury was so severe and life-altering and the misconduct so blatant that a patient injured by the errors of a health care provider should receive more than $250,000. By definition, that is not a frivolous lawsuit, but a very serious one. Damage caps do not prevent frivolous lawsuits, but instead, ensure that the most catastrophically-injured patients will not be compensated as a jury instructs, thereby limiting their rights.

The strongest, most publicized argument for damage caps in medical malpractice cases is the mythical unavailability of doctors – particularly in rural areas, who have supposedly been driven out of business due to soaring malpractice insurance premiums, due to outrageous jury verdict. As appealing as this argument may at first seem, it suffers from a fatal flaw. It is complete fabrication, utter hogwash.

Doctors are not fleeing states in droves, despite increasingly frantic and unsupported claims from the American Medical Association, the insurance industry and their allies. Independent assessments by state officials and the media have found that the number of doctors in many states, including Florida, Illinois, Ohio, Pennsylvania and Washington, has remained stable and in most, has actually increased. ( FL, Palm Beach Post Editorial, 7/16/03; OH, Toledo Blade, 7/17/04; PA, Allentown Morning Call, 4/24/04; WA, Seattle Times, 2/23/04).

The 2003 Weiss Report found that despite caps on economic damages in 19 states, "most insurers continued to increase premiums (for doctors) at a rapid pace, regardless of caps." The report found that insurers failed to pass along any savings to physicians in states with caps by refusing to lower their insurance premiums, and that caps only slowed the increase in the amount of damages insurers were required to pay out. (Weiss Report, 6/3/03.)

Premiums are higher in states with caps than in those without. The average malpractice premium in states without caps was $35,016 in 2003. The average premium in states with caps was $40,381. (Medical Liability Monitor, 10/03)

Medical errors kill an average of 195,000 people a year with an associated cost of more than $6 billion per year - "[t]he equivalent of 390 jumbo jets full of people are dying each year due to likely preventable, in-hospital medical errors, making this one of the leading killers in the U.S." ("In-Hospital Deaths from Medical Errors at 195,000 per Year, HealthGrades' Study Finds," Press Release for "Patient Safety in American Hospitals", July 2004, www.healthgrades.com)

"America spends more on dog and cat food each year than all medical malpractice payouts combined," said FTCR president Jamie Court, author of Corporateering: How Corporate Power Steals Your Personal Freedom And What You Can Do About It. (FTRC, 7/20/04, www.consumerwatchdog.org/healthcare/pr/pr004485.php3)

"Malpractice costs amounted to an estimated $24 billion in 2002, but that figure represents less than 2 percent of overall health care spending. Thus, even a reduction of 25 percent to 30 percent in malpractice costs would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small." ("Limiting Tort Liability for Medical Malpractice," CBO, 01/08/04)

The median inflation-adjusted payout in all tort (personal injury) cases dropped 56.3% between 1992 and 2001, to $28,000. ("Civil Trial Cases and Verdicts in Large Counties, 2001," Bureau of Justice Statistics, U.S. Dept. of Justice, 2004.)

The filing of personal injury cases has declined 4% since 1993. ("Examining the Work of State Courts, 2003," National Center for State Courts, 2004.)

And, perhaps most revealing, the U.S. General Accounting Office (GAO), Congress’s nonpartisan research arm, examined the insurance industry’s publicity campaign of lawsuit-induced falling doctor availability. The GAO concluded that "many of the reported physician actions and hospital-based service reductions were not substantiated or did not widely affect access to health care...some reports have received extensive media coverage in each of the five states, we found that actual numbers of physician departures were sometimes inaccurate or involved relatively few physicians," and at any rate, they "did not find access to these services widely affected." Rather than concluding that large malpractice verdict drove premiums up (of which the GAO found no evidence), it instead noted that "...malpractice insurers experienced sharply reduced gains on their investments from 1998 to 2001." (Medical Malpractice: Implications of Rising Premiums on Access to Health Care GAO-03-836.)

It is axiomatic in Objectivism that the evidence of our senses is valid, and that our minds are competent to interpret that evidence. The insurance industry wishes the citizens of the United States to forget that jurors –you and I – are capable of intelligently listening to evidence and making a decision fair to all parties. Instead, they prefer the far-off judgment of a bought-and-paid-for legislature over the valid courtroom conclusions of a jury which knows the facts, the details, and the specific harms involved in a particular case. As much as we correctly revere capitalism as Objectivists, the adulation must stop when outright deception and the destruction of our right to a fair, rational jury of our peers begins.

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