How Medical Malpractice Reform Does or Does not Fit Into the Healthcare Reform Debate

First the disclaimer: I feel uniquely qualified in writing this as I am not only a Physician, but the daughter of a medical malpractice attorney. Helping my father on his cases while I was in high school, is, to a large extent, why I chose medicine as a profession. I was fascinated by his cases, and in particular, the medicine aspects. Also, I have written a book, "How to survive a medical malpractice lawsuit" that will be published by Wiley-Blackwell in the late fall (shameless plug).

I grew up thinking that medical malpractice litigation was a necessary evil. Since my dad was a defense attorney, I naturally thought that he was the hero, rescuing good physicians from bad situations that often had little to do with their ability as a physician. I blamed the plaintiff's attorneys for propagating cases-not for the benefit of their clients-but for their own pocketbook. Plaintiff's attorneys often made 5 to 10x what a defense attorney made in salary due to the huge payoff.

As I applied to medical school, I was careful not to mention, if possible, what my father did for a living. Once, I was asked directly what my father did, and even mentioning that he was a lawyer was enough to engender disgust. It didn't seem to help that he was a defense attorney. I didn't understand, at the time, why a physician would have such disdain for a defense attorney; he was their defender after all. I still suspect this information coming out in the interview is the true reason for my rejection letter from that particular medical school, but I'll never be able to prove it...

Now as a practicing physician, I understand that guttural reaction towards malpractice attorneys of either side. I have learned that no matter which side you're on, you depend on doctors being sued to put food on the table. This of course led to some lively conversation between my father and myself.

So here are the issues as I see it:

• The healthcare arena is a scary place. And patients definitely need an outlet for their frustrations with the broken healthcare system we have now. Complaints often fall on deaf ears.
• Patients feel that the system is working against them (perhaps it is) and nobody is listening...that is...until they file a lawsuit. A lawsuit gets everyone's attention, and threatening one is the surest way to get your complaint heard and addressed.
• Currently, there are two ways to complain about your physician. A) You can issue one to the state medical board or B) You can get a lawyer to file a lawsuit. Reporting a physician to the medical board risks a physician license and therefore is investigated thoroughly and taken very seriously.
• The down side to this system is that there is no due process for the physician. No court. No juries. However, that is also the upside. At least your fate is in the hands of others who practice(d) medicine. And if the physician actually committed true malpractice, this is the system the is likely to punish them appropriately.
• Filing a lawsuit, however, is the most common mode of expression for patients. There are many reasons for this, one of which is the possibility of a monetary award. Some people believe that they deserve fiscal compensation for the erroneous actions of their physician.

Regardless of why patients sue, I 'd like people to answer this question honestly: Does a monetary award do anything to fix what happened and prevent that physician from doing it again and improve overall care of others in the same specialty?

I say no, it doesn't. Someone permanently disabled will still be disabled and have their costs picked up by Social Security. Someone with chronic pain will still have chronic pain. Someone with a disfiguring scar will still have a disfiguring scar. And the doctor who committed this terrible act of malpractice likely is not going to change their treatment practices because you won lots of money from the insurance company. The other doctors in that state suffer, because those large payouts increase the rates of all the other doctors who have nothing to do with this physician's malpractice.

• One study found that only 1.53% of patients who were injured by medical error filed a claim, but on the flip side, most events for which claims were filed did not constitute negligence. Yet researchers found that most errors are system failures, rather than individual faults.
• The medical malpractice legal system is wasteful and time consuming for both patient and doctor. Fifty-seven percent of medical malpractice premiums go toward attorney's fees, and only two-thirds of awards go to patients, who wait many years for their settlement.
  

THE SYSTEM PUNISHES PHYSICIANS, WHILE DOING LITTLE TO ENCOURAGE IMPROVED PATIENT CARE.

Instead, it encourages physicians to engage in defensive medicine, a process that adds 210 billion dollars a year (From an April,2008 study by Price Waterhouse: "The price of excess: Identifying waste in healthcare spending") in healthcare costs. Now I know all about the quoted CBO study that says that the effect of tort reform would lower overall costs by only 0.5%. But if you read the actual words, it discusses the lowered insurance premiums as the cost savings of tort reform. It even suggests that their numbers could be off dramatically when you figure in defensive medicine ("by as much as 7%"). And if you do the math: 7% of 2.4 Trillion dollars is 168Billion. This is per year. If you do the 10 year estimates that the healthcare reform plans like to quote their cost (e.g. the "goal" is to keep the 10 year cost at 1 Trillion or 100 Billion/year) then by the CBOs own supposition, 1.7 Trillion dollars in defensive medicine costs could be saved with Tort Reform. Not an insignificant amount.

Who are the beneficiaries under this current medical malpractice system? Not the patients who lose 80% of cases that go to trial, and if they win only receive a fraction of the award many years later. Not the doctors who suffer emotional and financial distress that gets passed along to the healthcare system at great cost. Who then? Well the attorneys both plaintiff's and defendant's (Sorry Dad...) alike.

So what is the solution?

My opinion differs from many of my colleagues. I don't believe that the ultimate solution involves caps on non-economic damages, or immunity from lawsuits. For reasons I will go into later (and [warning another shameless plug] I have a whole chapter about in my book to-be-released), I don't think that altering tort provisions will provide the proper psychological relief to have a demonstrable long term effect on the practice of defensive medicine. [Did I mention I also have a degree in Psychology? I don't think it is in my bio, but is now relevant to this discussion.]

I do, however, think that tort reform helps stop the bleeding that is occurring and is an adequate short-term solution.

See Part II for my discussion on the solution to truly create a system for policing physicians that is fair and equitable to all parties, that changes the practice of defensive medicine, and leads to better quality care at lower cost to society.