Malpractice Nonsense

In her book, Another Day in the Frontal Lobe: A Brain Surgeon Exposes Life on the Inside, neurosurgeon Katrina Firlik says:

"One reason physicians are so unhappy these days is that the definition of malpractice has changed. Malpractice is no longer defined as truly negligent or improper behavior. Now, a poor outcome alone triggers claims of 'malpractice.' The quality of care may be irrelevant.

I have never been sued, but expect to be. The entire new generation of surgeons expects to be sued...It doesn't matter how good you are or how carefully you practice."

Firlik distinguishes between medical errors that are inherent in risky procedures and errors that are the result of professional mistakes. Like anything else in life, medical procedures are not 100% reliable, even if performed or prescribed perfectly. Firlik points out that, in spite of everyone's best efforts, surgical procedures result in infection about 1% of the time.

Under the old definition of malpractice, plaintiffs could sue and win primarily only for professional mistakes. For example, if it could be proven that an infection happened because of a failure to follow standard procedure in sterilization.

Under the new definition, plaintiffs can sue and win whenever they get an infection, even though 1% of all procedures result in infection, in spite of a perfectly-executed surgery according to the most current medical standards.

When you combine this with America's cherished trial-by-jury system, it results in extraordinary legal payouts for plaintiffs, much of which goes to the lawyers. An example of where this is particularly true is in obstetrics, where the involvement of children can lead to emotional jury decisions and larger-than-normal payouts.

Former Senator and Vice Presidential candidate John Edwards made his career (and fortune) coaxing large financial rewards out of juries who blamed birth defects on doctors who botched deliveries.

A Boston Globe article from 2003 points out how Edwards' courtroom pleas for empathy (in the form of dollars) became near-legendary:

His summations routinely went beyond a recitation of his case to a heart-wrenching plea to jurors to listen to the unspoken voices of injured children.

"I have to tell you right now -- I didn't plan to talk about this -- right now I feel her, I feel her presence," he said in his record-setting 1985 lawsuit on behalf of Jennifer Campbell, born brain-damaged after being deprived of oxygen during labor. "She's inside me and she's talking to you. . . . And this is what she says to you. She says, `I don't ask for your pity. What I ask for is your strength. And I don't ask for your sympathy, but I do ask for your courage.' "

The result of the changing definition of malpractice, combined with an empathetic jury system is that doctors cannot risk practicing medicine without buying malpractice insurance. The premiums for this are, naturally, rising. According to this website,

"A survey on medical liability issues conducted in 2006 by the American College of Obstetricians revealed that approximately 90 percent of the obstetricians in the United States had been sued at least once. Of the approximately 10,000 obstetrician respondents, the average number of lawsuits over a career is between two and three...

Florida is the highest [malpractice] premium state, with base premium rates as high as $238,728 in 2008 for Miami and Dade Counties, followed by states that include Illinois, New York, Pennsylvania and Massachusetts."

So, who pays for this? When a plaintiff wins $2 million dollars in a malpractice suit, the doctor's insurance company makes the payment, which is split between many parties including the plaintiff (or plaintiffs), the lawyer(s), and others. The insurance company pays from its collected premiums. The premiums come from the many doctors using the insurance company. The doctors pay the premiums out of their salary (possibly with some help from their employer). The doctors or hospitals pass the cost on to YOU.

Another, indirect, financial cost of high malpractice awards is that they encourage "defensive medicine". Doctors, aware that a prosecutor might propose "what if?" scenarios to a jury, order extra tests and procedures to protect themselves from legal damages. What if Dr. X had ordered another sonogram or CT scan? Would that have saved the patient from these horrible consequences? But, Dr. X didn't do this, and therefore you, the responsible jury that you are, must declare that this doctor did not perform his professional duty! Never mind that these tests may rarely, or never, reduce the risk of the procedure, and that the machines required to perform these extra tests may cost millions of dollars, which is passed on to the patient in one form or another.

In addition to the financial costs, high premiums are leading to doctor shortages in some areas, where patients simply can't find an obstetrician. According to this May 2009 press release from the The American College of Obstetricians and Gynecologists:

Malpractice insurance costs have forced many obstetricians in New York to stop practicing obstetrics, refuse to care for high risk pregnancies, or leave the state...Many physicians are forced to give up obstetrics – or move to states that have appropriate and fair liability insurance rates...Eight New York counties have zero obstetricians: Essex, Greene, Seneca, Tioga, Washington, Yates, Schoharie and Hamilton. In addition, 18 counties have less than five practicing ob-gyns.

Insurance premiums are one of the reasons doctors in the U.S. require higher salaries than doctors in other countries, a statistic commonly cited in current debate on health care costs. However, other countries have taken steps to limit malpractice rewards. In Sweden, malpractice claims are handled by filling out a form, which is reviewed by a committee. In the UK, complaints are heard through the National Health Service, which avoids the lottery award system found in the U.S. Ironically, some have claimed that malpractice is less of a problem in the UK because the NHS is so inefficient and cash-strapped that people feel guilty suing them, even when the malpractice is very severe. (Example here) This bulletin from the American College of Surgeons explains how the Swedish system works, and that the primary opposition to such systems in the U.S. comes from a cultural expectation of very large awards for medical errors, from trial lawyers who would make less money, and resistance to making malpractice an exception to our trial-by-jury system.

Obama says everything is "on the table" when it comes to health care reform. Why isn't President Obama demanding reforms in malpractice insurance, which is part of everyone's medical costs? Perhaps it is because he is a lawyer, and feels empathy for others in his profession who might make less money under a reformed system? Perhaps it is because lawyers make up a large part of his donor base, and might stop contributing to his campaigns? Perhaps it is because he sees jury awards as a way to redistribute wealth from doctors who may have had advantages in life that the plaintiffs did not?

Our failed malpractice system increases the costs of health care in several financial and non-financial ways. These costs are passed on to you, through higher taxes, higher insurance premiums, higher deductibles, or other ways. "The government" doesn't pay for it. "The government" is the taxpayer, and the taxpayer is you. Obama says this is the time to fix health care. Let's do it.