Medical Liability: Focus Should Be Patient Safety

Why do conservative politicians and lawmakers continue to bark about the need for medical tort reform?  Why does ALEC and other corporate lobbying groups want so badly to limit the rights of those most seriously injured because of medical errors?  After all, every legitimate study shows that the “cost” of medical liability payments to those who are the victims of medical malpractice represents but a nanoparticle out of total annual health care costs.

When the administrative office of Pennsylvania’s court system issues data on the numbers of case filings, the number of medical malpractice cases is consistently down from its high points.  Data on the results of jury verdicts, even in the “judicial hellhole” that is Philadelphia (as characterized by tort-reform proponents), show an overwhelming advantage for the defendant doctor or hospital.

Even prominent tort reform advocates admit, when pressed, that our legal system is not being inundated with frivolous medical malpractice claims.  Victor Schwartz, the general of the American Tort Reform Association, one of the most influential voices for curbing the rights of victims of medical and hospital errors, has conceded: “It is ‘rare or unusal’ for a plaintiff lawyer to bring a frivolous malpractice suit because they are too expensive to bring.”

Why do Republicans continue to press this issue then?  The answer, plain and simple, is money.  Any rule or restriction that limits recovery for those injured by medical mistakes – such as a cap on the amount of monetary damages a plaintiff may recover in a civil lawsuit – means more money in the hands of medical malpractice insurance companies.

The Center for Justice and Democracy, which describes itself as “working full-time to make sure average Americans get a fair shake in court, even against the country’s most powerful special interests” and which is affiliated with New York Law School, has assembled a “briefing book,” entitled “Medical Malpractice: By The Numbers.” CJ&D’s briefing book is a comprehensive collection of facts and figures useful in debunking claims of a tort crisis.

As a trial lawyer, I have represented many, many families who suffered devastating injuries from medical and surgical and hospital errors.  So of course I am deeply concerned any time there is a legislative threat to the rights of the individuals and families I know and represent.  But there is more to the story.

The time and energy we spend on the mythical medical liability problem is time and attention away from the real problem.   Medical errors occur in great numbers in hospitals large and small across this country.   Every error means a risk of serious harm to a patient – a patient who is a  mother or father, a son or daughter, someone’s loved one.  In far too many instances, medical error means more than just the risk of harm; it means actual harm, physical injury, pain and suffering, increased medical care costs, even loss of ability to work or financial ruin.

We have to do a better job in addressing the epidemic of medical error.  Hospitals have to do better.  Physicians need to do better.  Frankly, insurance companies should take the millions they spend on lobbying for yet another measure to limit the rights of those who are injured by a medical mistake and spend those dollars on programs to reduce the errors that create the need for compensation in the first place.

The CJ&R report is not just comprehensive.  It is a devastating indictment of the tort reform movement.   Every point included has a source citation so that anyone can check the source authority.   In short, this report is not propaganda; it presents hard evidence.

Here are just a few of the report’s key findings:

–          Study after study shows a small fraction of patients who experience malpractice actually bring claims.

–          Tort reform may actually increase the incidence of medical error and the risk of harm to patients because physicians do not expect to bear the costs of injuries due to medical or hospital negligence.

–          Over the last 30 years, medical malpractice premiums and claims have never been greater than 1 percent of our country’s health care costs.

–          The notion that tort liability causes physicians to practice “defensive medicine, which drives up medical costs overall, is largely a myth.  Rather, tort liability acts as a way of protecting patients against under-treatment.

–          Tort reform does not correlate to the number of physicians.  In Texas, which has seen some of the most drastic tort reform laws put in place, has not had a significant impact on the doctor population.  Physician levels, it turns out, are related to demographic patterns and job opportunities, not tort laws.

–          Caps on damages limit the rights of individuals with serious injuries but do not – repeat, do not – lead to lower malpractice premiums.

The CJ&D report also has an extensive section on patient safety.  Reading through the report, it is impossible to miss the key lessons.  As a society – lawyers, health care providers, hospital administrators, insurers – we all have a lot of work to do to improve the quality of health care and its costs.  It is not enough to say that the tort reformers are grossly distorting the debate over what our tort law should look like.  We also have to keep a keen focus on reducing the incidence of medical errors.  The safety and well being of patients, really the safety and well being of us all, depends on that.