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