some mythology of tort reform and medical malpractice insurance premiums

What many who favor tort reform as a means of reducing healthcare costs don’t know about medical malpractice law (medmal) is that substantively, it is already “tort reform”. More precisely, it is front-end, built-in tort retardation.

Its invention within the body of tort law is singularly purposed on the shielding of doctors from litigation, even in the case of factual medical error. The centuries-old sufficient elements of tort—duty, breach and injury—are not even a starting point for medmal.  Indeed, even in general torts, injury, error and even death alone are hardly sufficient grounds for bringing any negligence suit against a non-doctor-—under an infinity of scenarios, one can drive into a school bus and cause the death of forty people thereon and not be liable for a penny. But upon shifting into medical malpractice law, liability is even lower, as the plaintiff’s burden of proof is by law higher.

Medmal’s effect on the profession of medicine is mechanically parallel to the effect of the New York Times vs. Sullivan Supreme Court decision on the practice of journalism. It frees up professionals to exercise their crafts with sufficient room to make genuine error without disarming fear of legal liability. What is being protected is of course different—on the one hand, the constitutional mandate of a free and robustly inquiring press functioning as chief watchdog for the republic’s electorate, and on the other, the professional practice margin of doctors negotiating, even imperfectly, the improved health status of patients.

Medmal is specially contextualized tort law designed outright to raise the burden of proof for prospective plaintiffs, thereby greatly reducing winnable legal claims against doctors. The minimum standards by which a plaintiff could successfully sue a corporation for injury resulting from a defective product, for example, are insufficient to give rise to a legal claim against a doctor, even if a patient suffers death and the defective product claimant only suffered nonlethal injury.

two zero-cost and widely ignored ways to quickly reduce medmal litigation:

  1. Actually reduce medical error.
    Given so high a burden of proof borne by the plaintiff, a direct course of action to prevent litigation is to simply reduce the very legally cognizable medical error on which it can ever be based. Yet this point of focus is entirely absent from all reformers’ discourse. No, medmal isn’t a big enough hindrance–instead, the patient must be additionally walled off from any legal claim whatever by static damage award caps that represent nothing truly deterrent or economic but an actuarial convenience for insurers and practitioners. How much sense can a static damage cap of X dollars make when the costs of healthcare are dynamic and themselves rising faster than inflation? Where does X come from? It has no relationship to the injury or to deterrence. It is a calculation disconnected from all economic relevance and proper—market based, even—reality. It begs the question: X will simply be factored into actuarial pricing, thereby raising the underwriting cost and returning the patient class to the same risk exposure it enjoyed originally, but now with less coverage and the very thing the claim associated with the cap was supposed to deter—if not worse.
  2. When there is medical error, learn as practitioners how to talk about it to patients.
    Political ideology aside, litigation is apparently not even truly a function of injury or of clear practitioner negligence alone, but rather of practitioners’ communication about it, as cited in this New England Journal of Medicine article in 2006, when they were respectively Senators Obama and Clinton:

“Studies show that the most important factor in people’s decisions to file lawsuits is not negligence, but ineffective communication between patients and providers. Malpractice suits often result when an unexpected adverse outcome is met with a lack of empathy from physicians and a perceived or actual withholding of essential information. “.—Senators Obama and Clinton

Indeed here is the difference such improved disclosure and communication made—greater than 50% in all cases—in the University of Michigan Health System:

Results of Medical Error Disclosure Program at the University of Michigan Health System

Screenshot: Results of Medical Error Disclosure Program at the University of Michigan Health System

Yet little energy on the part of the AMA or practitioner community seems aimed at this free—value additive–and immediately available corrective.

Again, the emphasis remains squarely on shutting down all plaintiff courses of legal redress.

Suing a doctor is hard. It’s really hard. When next in a crowded place, take a poll of how many in your midst have successfully sued a doctor or even personally know of one who has. Having legal standing is hard, never mind actually winning a case. And when you sue, juries frequently enough award modest amounts by most standards perhaps out of longstanding reverence for doctors.

Atop the higher burden of proof, due to the unparalleled asymmetry of information between doctor and patient and the patient’s family, far greater medical errors are quietly buried—literally and figuratively—than are ever even medically understood by would-be plaintiffs, let alone those who can meet the plaintiff’s burden. These facts support litigation’s demonstrable infrequency. It is much less common than recent political discourse suggests.

Points and citings too infrequently made in the current discourse are these:

Stability, Not Crisis: Medical Malpractice Claim Outcomes In Texas, 1988-2002 Famous study citing non-positive relationship between lawsuits and medical malpractice premiums (excellent sample pool of Texas state). There are 100s of thousands of likely litigable healthcare cases that go unlitigated—medical malpractice cases appear “under-filed”. No positive correlation exists between medical malpractice litigation and the raising of doctors’ insurance premiums by insurance companies in one of the best population samples currently available.

To Err Is Human: Building a Safer Health System : Most famous study citing avoidable medical error in U.S. history (often referred to as “the IOM (Institute of Medicine) study”). Considerable doctor and hospital staff error contribute to not just injury, but a high death statistic exceeding certain “epidemic” disease statistics:

“As many as 98,000 people die each year from medical errors that occur in hospitals. That’s more than die from motor vehicle accidents [43,458], breast cancer [42,297] and AIDS [16,516]—making medical errors the fifth leading cause of death in this country.”

Deaths from avoidable medical error more than double in past decade, investigation shows: Study showing how avoidable error is worsening, not getting better.

Harvard School of Public Health Study : Casts doubt on claims that medmal system is plagued by frivolous lawsuits.

Updates: latest from Health Affairs: Hospital Error May Be Ten Times Greater Than Previously Measured


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