Michael Kirsch, M.D. – author, MD Whistleblower
Medical malpractice reform is in the news again. Of course, for the medical profession, the medical malpractice system is the wound that simply will not heal. For the plaintiffs bar, in contrast, the medical liability system is the gift that keeps on giving. I have argued that the current system fails on four important fronts.
- Efficiency
- Cost
- Fairness
- Quality Improvement
I admit readily that my profession has not been as diligent as it should be in holding ourselves accountable. We have not been forthright in admitting our medical errors, although can you blame us under the current medical liability construct? There is merit to the argument that tort reform is championed by medical malpractice insurance companies who have an economic agenda in this issue.
I recognize that certain malpractice reform measures, such as caps on non-economic damages, means that some individuals who have suffered severe injuries as a result of medical negligence, would not be adequately compensated. Nevertheless, I support caps because I am convinced it would serve the greater good, even though I would feel differently if I were one of the plaintiffs whose deserved compensation would be curtailed.
Despite the above admissions, the current system is a dysfunctional mess that fails in its mission to provide justice and fairness to the participants. More than physicians’ arguments for reform, plaintiffs lawyers’ pleas for maintaining the current system is permeated with economic self-interest. In my view, theirs is a weak brief that is transparent with regard to its true motives.
Here are some inarguable weaknesses of the current system.
- The vast majority of patients harmed by medical negligence are not captured in the current system.
- Non-partisan analyses confirm what we physicians know instinctively: litigation fear costs billions of dollars in defensive medicine, medical tests ordered to protect us, not our patients.
- The majority of physicians targeted are ultimately released at some point in the process.
- By stimulating defensive medicine, the current medical liability system diminishes medical quality, and does not serve as a deterrent against negligent care. Paradoxically, arguing that defensive medicine is negligent could be a potent niche for plaintiff attorneys.
The New England Journal of Medicine (NEJM) recently released a study after analyzing data from a medical malpractice insurance company involving over 40,000 physicians. Here are some highlights.
- Every surgeon will face a medical malpractice lawsuit at some point in their careers. Is this a good lure to recruit talent into the surgical specialty?
- About 7.5% of physicians face a medical malpractice lawsuit every year. ‘Hey, I haven’t been hit for a few years. Is my number coming up soon?’
- About 80% of claims against physicians are dropped. Would physicians be satisfied if a medical treatment were effective in 20% of patients?
- Nearly 20% of neurosurgeons and cardiac surgeons are sued every year. Would you perform well at your job under a 20% yearly threat of being sued?
So, the NEJM has sprinkled some more data on a mountain of evidence that the current medical liability system is broken. Did we really need another study? Let’s study if patients who are suffering heart attacks or severe pneumonia fare better if they are hospitalized rather than left at home. Who can divine the outcome of this hypothesis? After all, since this issue has never been published, who could predict the outcome? Yes, of course, I am being deliberately absurd.
Some issues are self-evident and don’t require a study to determine the obvious conclusion. Yet, when it comes to medical malpractice reform, the current administration and Democratic legislators reassure us that they are serious about tort reform and want to ‘study the issue’ further. We hear the euphemism ‘pilot program’, which means quicksand. Tort reform is moribund and has been assigned a DNR (Do Not Resuscitate) status. Defensive medicine, in contrast, is alive and well.
This was originally posted to MD Whistleblower and is used here by permission
First and foremost, the Medical Malpractice System is a very complex set of laws issued by each state. Texas was very successful in achieving Tort Reform. We can ask ourselves why Texas was able to break ground and ensure that physicians liability insurance rates were slashed; the answer is very simple.
Texas physicians went to the state. They did not make it a federal issue (which it isn’t). In fact, the United States Government did issue a massive Tort Reform when it comes to suing physicians employed by the US Government (namely military physicians). The Federal Tort Claims Act (FTCA) from 1948, in fact makes it illegal to sue the employed physician directly. All lawsuits directed regarding Medical Malpractice limits the claims too. The FTCA exempts claims based on the performance, or failure to perform a “discretionary function or duty”. This is precisely what physicians ask for.
It is amazing that Physicians do not put forth the research necessary to gain medical tort reform. Physicians sit idly by and entrust the AMA to try and gain Federal Tort Reform, when there is none to be had. Further, physicians have not done anything to organize beyond the AMA; an agency that created most of the problems in the current medical system (ie. 3rd party payment structures, license protections that force physicians to apply with Medicare, whether they want to or not).
The problem goes all the way down to the smallest community of physicians; physicians on staff at hospitals. Time and time again, some physicians want something and others want to protect their contracts with the multi-million dollar conglomerates. For instance, some hospitals require Emergency Room coverage (which actually increases Med-Mal Insurance), while others dont. Physicians have a medical executive board that can change these bylaws, but they dont; most of the voting members are employed by the conglomerate or have a healthy contract- the conglomerate only need tell the physician “vote my way, or we will not renew”. They dont even need to say it, it is an understood. Worse than that, is most senior physicians want to ensure the younger physician must endure the same pains, trials and tribulations they faced when they were once the junior physician.
After extensive conversations with various legislators in the state of New Mexico, I found out why, exactly, they will not bring Medical Tort Reform to the floor. It is quite simple. Legislators need money to run for office, on all levels. The more money they have, the more likely to win. But when a potential legislator (incumbent or new) comes to a physician and asks for support, the physician complains about everything under the sun, and then give extremely small amounts to support the campaign. So when the legislator is sitting the a 1 Million + house, and a physician gives $500 bucks, dont expect much. Even with all of this said, physicians still ask the Federal Government for help, when they have zero power to do so. Every state has their own medical boards, laws governing the delivery of medicine, and laws
Complaining about everything will not get anything done either. Pick one problem area (Medical Tort Reform) and stick to it. I have heard countless physicians speak to legislators and bring up: taxes, med-mal tort reform, and a slew of other complaints.
In New Mexico, in a fairly poor county, the physicians were being paid $90 per day for ER Coverage (at the highest), which is absurd. The county has a fund that gives to the hospitals in amounts well over 15 Million. This fund is supposed to help pay for physician services to the 30-35% indigent patient load we have. But obviously, the hospital wasn’t paying up. So, $3,000 later and 10 hours of meetings, the County actually ordered the hospital pay $350 per night or lose the money. The hospital complied in 72 hours. Actually, the CEO of the hospital was released shortly after this. The county commissioner was able to seek this only after explaining every detail to him regarding this situation, and even better, he is a Democrat. He understood, after full explanation, what Physicians faced when trying to work with a hospital that has millions. But, he still needed money to re-run for office. He also understood how the indigent fund was set up and only helps the “Rich” Hospital.
Why is it lawyers constantly get what they want? Accountants? Banks? Their donations are substantial and well organized. They also know what they are asking for are state issues. They bring problems organized in briefs and keep it minimal. When physicians realize they are not the only ones persecuted by the “man” and get with the program, they can have everything they want.
Physicians need to organize on state levels and have appropriate Executives that can grassroots campaign to the politicians. When this occurs, more states will have success like Texas.