Jeff Segal, MD, JD, FACS
I doubt that lately, few subjects have been studied, discussed or argued as much as the effects that frivolous lawsuits have on the nation’s healthcare system. This summer, three more studies looked at this problem from various vantage points.
First, Jackson Healthcare investigated whether physicians working under contract with the federal government practice less defensive medicine than their private sector peers. As a reminder, as if anyone really needed one, defensive medicine describes ordering medically unnecessary tests, treatments or consultations to avoid malpractice lawsuits. The results? Only 43 percent of physicians working under government contract, where the Federal Tort Claims Act offers protection against personal financial liability, stated they practiced defensive medicine. Contrast that to an earlier Jackson Healthcare study where 92 percent of private sector physicians admitted that they practiced defensive medicine. (We wonder about the other 8%.) Of those surveyed who worked in both private and government, 62 percent reported practicing more defensive medicine in their private sector work than they did under government contract.
Jackson Healthcare Chairman and CEO Rick Jackson stated “the Federal Tort Claims Act offers government-contracted physicians protection against personal financial liability, whereas private sector physicians work under the constant shadow of lawsuit lottery suits.”
Next, Jackson Healthcare examined physicians in countries with more reasonable tort environments. Survey Pacific interviewed 200 randomly selected physicians from four countries (New Zealand, Canada, Sweden and the United Kingdom). Their findings? None surveyed reported practicing defensively.
Again, Rick Jackson, “The root driver of defensive medicine, and its inflation of our overall healthcare costs, is the fact that physicians in the (US) private sector are the only physicians in the world who are personally financially liable.”
Finally, a study out of Texas explored the efficacy of the state’s tort reform measures. The study, published in the Journal of the American College of Surgeons, found a nearly 80% decrease in surgical liability lawsuits at the University of Texas Health Science Center at San Antonio since tort reform was enacted in 2003. The study “confirmed our hypothesis that (tort reform) was important, but the magnitude of the decrease was quite striking,” said Dr. Basil Pruitt, Jr., co-author of the project.
Opponents of tort reform will undoubtedly find fault with these findings. But study after study after study come to the same conclusion; defensive medicine, and the burdensome costs associated with the practice, is driven by the fear of meritless malpractice lawsuits. Until some measure of real tort reform is enacted, we will keep stating the facts, and fighting the fight.
Tort Reform is a legal weapon used in Texas against Texans.
When there are laws on the books that prevent the common man from getting accountability, no telling what will happen.
Providing a link to a video showing just how Tort Reform is working out in Texas, or not.
http:ww.youtube.com/watch?v=JT7rxa21_Xo
Or, just Google Cleveland mark Mitchell, then click on youtube Cleveland Mark Mitchell December 12 1950 – April 26 2008.
Thank you for your time,
Cilla Mitchell
A Texas nurse and vet
Precisely why I am returning to Canada, where the voice of reason dictates above all.The US hates their physicians and I have had enough.Forget the comments like”good riddance, don`t let the doors hit you in the ass as you`re leaving”, because I`ll be moving way to quickly through those doors to let that happen.
Good luck to my hapless colleagues who will spend the rest of their careers waiting and hoping for things to get better.
” Jackson Healthcare Chairman and CEO Rick Jackson stated ‘the Federal Tort Claims Act offers government-contracted physicians protection against personal financial liability, whereas private sector physicians work under the constant shadow of lawsuit lottery suits.’ ”
Say, Jeff–why doesn’t this constitute “unequal protection of laws”? And if it does, is this not an avenue we can pursue at the federal level–in fact, at the highest federal level, i.e., SCOTUS?
While recognizing that much passion underlies the poles of this issue, unequal protection under the laws is a concept that, frankly, should not have primacy in these matters. When a negative health care outcome ensues and tort is alleged, non-scientists (eg lay jury members) are summoned to render decision on what, at its core, is a scientific dispute. With no disrespect to the law intended, this summoning is as logical as asking a jury of blind persons to adjudicate the color of a garment, after listening while two opposing attorney teams argue whether or not the garment is a certain color, or not. The blind jury members may reach a consensus of opinion, but the opinion can be wholly unbased upon facts.
Lay juries are generally poorly equipped to deal with true understanding of medical evidence. For instance, they do not understand concepts such as sensitivity of tests, specificity of tests, Likelihood Ratios, Number Needed to Treat, Number Needed to Harm, the fact that test results can be falsely positive or falsely negative, and the fact that needless diagnostic testing can hurt patients. Further, as is demonstrated by the numerous “bad baby” verdicts that have occurred and that allege a “birth injury” which supposedly would not have occurred if C-section birth occurred sooner, the fact that perinatal fetal monitoring has NOT meaningfully decreased the rate of cerebral palsy has been blithely ignored by jury after jury. Apparently juries are more enamoured by charmers like John Edwards, than by having to actually deal in an intelligent fashion with the difficult and possibly complex science that underlies medical care.
Finally, if one wishes to assert that there should be equal protection under the law, what happened to the concept of a jury of one’s peers? If a physician is a defendant, one’s peers are, logically, other physicians who practice in the same specialty of medicine. Physicians in torts are systematically denied access to a jury of their peers.
We already have a model for reform that may be relevant. Workmen’s Compensation boards use experts to render decisions that are designed to be deployed in an impartial and scientifically reasonable manner.
Let’s limit the pool of persons who can render decisions about alleged medical torts to persons who have the scientific and clinical background,persons who have a better chance of rendering a decision based in science and not on emotion.
Gary Gaddis is mistaken to believe the Independent Medical Examiners are “impartial” peers. In fact they are paid by the Bureau of Workers’ Compensation (BWC), rather handsomely, often $400-900 per consultation. Most of my patients indicate that the examiner rarely spends more than 10 minutes with them, are even more rarely actually palpates the painful region. Some are seeing 4-6 patients per hour. Essentially they are paid lackey’s of the BWC and there is nothing impartial in their opinions.
What almost always seems to be missing in these kinds of articles is that routinely it has been reported that up to 85% of all plaintiffs, regardless of the proof against the doctor, no matter how egregious the malpractice, lose their cases. Juries are biased against defendants physicians, they do not want to believe this stranger physician to them could do the things alleged because it allows for the acknowledgement that their own docs can injure them.
A jury of your peers, as suggested, all docs, would be patently unfair given that many doctors refuse to testify against other doctors, again, regardless of the level of malpractice. A jury of all docs would be equally predisposed to come to verdict for the defendant.
The fact is the medical malpractice crisis is manufactured by the medical community.
That being said, as a victim of malpractice, I agree the system as it now stands is not working. Maybe a system of mediation or arbitration with both medical and non medical people doing the meteing out of justice would be better.
The sad fact is that the medical societies and the state do not sanction the 15% of recidivist docs whom Public citizen has estimated commit 85% of the malpractice. Clear out the ranks of the known bad docs and the ‘crisis’ will disappear overnight.
Carol Jay Levy, B.A., CH.t
author A PAINED LIFE, a chronic pain journey
Clearly the issue is quite difficult but there are fallicies in some of the arguments above.
In most ( if not all) states, a suit cannot be filed unless an expert in the field agrees there has been a deviation from the standard of care. Hence, it is unlikely that all physicians would presume a defendant MD is innocent. If this were the case, no malpractice claims would ever be filed. In Neurosurgery, the District courts have ruled that only Neurosurgeons can effectively police the medical testimony of Neurosurgeons. Part of the rationale for this decision was that numerous members of the national societies ( AANS and CNS) testified that they were witnesses for both plaintiffs and the defense. I believe there are MDs who could be very impartial.
Secondly, the statistic that 15% of the recidivists account for 85% of the suits is often quoted by the ABA. This is an egregious misrepresentation of the facts. What they do not say is that out of the 15%, 95% are either Neurosurgeons or Obstetricians. Therefore, either all Neurosurgeons and Obstetricians are poorly trained since thay account for 85% of the suits or rather these MDs practice in high risk specialties and when complications occur, they can result in astronomical awards. This potential for multimillion dollar awards maximizes the risk reward ratios for the plaintiff lawyers.