Malpractice Mythology

The New York Times
January 9, 2005

Malpractice Mythology

"Tort reform," the Bush administration's answer to the problem of high medical malpractice costs, makes sense from only one aspect: the political. The genius of tort reform, which focuses on putting a cap on the awards from malpractice suits, is that it offends only one big-money lobbying group: trial lawyers, who are important financial supporters of the Democratic Party. Meanwhile, it helps or holds harmless Republican special interests in the insurance, drug and health care industries. The only problem is that it hurts the hapless patients who suffer grievous harm at the hands of incompetent doctors.

We hold no brief for the current medical liability system, which does a poor job of compensating most victims of medical malpractice. An authoritative study of thousands of patients in New York State found that the vast majority who were harmed by medical errors or negligence never filed suit, whereas the vast majority of those who did file suit were not actually harmed by negligent doctors. Some studies suggest that, once a suit is filed, the courts do a reasonably good job of sorting out who deserves compensation, while other research has found that juries are swayed more by the severity of a plaintiff's injuries than by evidence of negligence. But in a medical system that is coming under increased fire for failing to deliver consistent quality in hospital care, it is clear that only a small number of people are being compensated for malpractice.

The problem with the president's approach, which would limit noneconomic damages to a paltry $250,000, is that it would punish many of those most deserving of compensation. If there is a problem with frivolous lawsuits, that is best addressed by raising the hurdles for filing a malpractice suit, perhaps by requiring an expert judgment on the merits of a case before it can proceed through the courts. But surely $250,000 hardly makes up for the physical and emotional damage done to people who have suffered total paralysis, permanent blindness or severe brain injury because of medical errors. Instead, Congress ought to consider requiring guidelines for judges and juries to help determine what compensation is reasonable in a given circumstance. Similar guidelines could help ensure that punitive damages are high enough to deter bad conduct; $250,000 would hardly amount to a wrist slap.

Politicians endorsing tort reform say a crisis of escalating malpractice insurance premiums is forcing doctors out of business. The extent to which this is an actual problem is murky. Insurance companies have substantially raised premiums for malpractice coverage for doctors in high-risk specialties like obstetrics and neurosurgery in some states, leading at least some doctors to curtail their services, retire or move. The White House laments that patients in some areas are thus forced to travel long distances to find, for example, obstetrical care. But when the Government Accountability Office visited five of the hardest hit states in 2003, it found only scattered problems and was unable to document wide-scale lack of access to medical care.

Most states that are burdened with high premiums have already set their own caps, generally at more reasonable levels than those proposed by the president. It would seem more useful to consider making it harder for insurance companies to gain rate increases. The best response, one that would benefit the public in general, would be to weed out the small number of negligent doctors responsible for generating most of the malpractice awards.

None of the tort reform proposals deal with the underlying need to identify harmed patients and provide them with fair, prompt compensation. Experts have suggested a number of approaches, including special health courts with judges trained to deal with malpractice issues, required mediation, mandatory reporting of errors by doctors and prompt offers of compensation. But there is a lot of uncertainty about what would work best.

Although the administration has been sponsoring some projects to reduce medical errors or speed the resolution of claims, these have faded behind the full-court political press to impose "tort reform." Instead of fixating on an idea that would do little to solve anything but the health care industry's desire for fewer big court awards, Congress should push for a wide range of demonstration projects aimed at solving the malpractice problem by actually cutting down on malpractice.