Rather than focusing on medical malpractice lawsuits being the cause of rising health care costs, malpractice claims should be looked at as a symptom of a greater problem: medical negligence. Tom Baker, law professor at the University of Pennsylvania, sums up the med mal climate, "The reality is [that] we have an epidemic of medical malpractice, not of malpractice lawsuits."
Estimated to cause approximately 98,000 deaths per year by Institute of Medicine, preventable medical mistakes rank as the sixth leading cause of death when integrated with recently published statistics by the Centers for Disease Control. Deaths caused by medical malpractice would fall just below accidental deaths and just above Alzheimer's disease-related fatalities.
Despite these statistics, many believe that malpractice claims are to blame for rising health care costs, rather than the preventable mistakes of health care professionals themselves.
Is Tort Reform the Answer to Rising Medical Costs?
Tort reform essentially means either limiting the dollar amount malpractice victims can recover after a medical mistake or adding additional barriers to filing a med mal lawsuit. Proponents of tort reform argue that medical malpractice lawsuits drive up the costs of healthcare for the rest of consumers and that increasing insurance premiums are the direct result of medical malpractice suits. So, if the amount of money available to victims is capped or if victims are otherwise dissuaded from filing a malpractice lawsuit, then we will be able to bring down the costs of medical care.
While the reasoning may seem logical, the problems with these arguments become clear when each is addressed on its own.
The Malpractice Claim Itself: Are Frivolous Lawsuits To Blame?
Proponents of tort reform claim that the number of meritless medical malpractice lawsuits filed is on the rise. Because medical malpractice lawsuits are expensive for medical professionals and hospitals to defend, those cases result in rising healthcare costs. This just isn't true. Frivolous suits are not as common as reformers would like everyone to believe and malpractice claims make up a very small percentage of annual health care costs.
First, while medical malpractice lawsuits may be expensive to defend, they are also very expensive and time consuming to assert; neither expense would be necessary but for the mistake of the health care professional involved. At the onset of a malpractice claim, the injured person not only bears the burden of the injury, but also of the initial phases of the lawsuit.
Personal injury attorneys that represent the injured victims of medical malpractice typically are not paid unless the victim is paid. The time required to fully investigate the case requires both the victim and his or her medical malpractice attorney to thoroughly evaluate a case for merit before pursuing any kind of recovery. Valid, though weak, claims may not always be asserted.
Second, the numbers related to malpractice suits tell a different story about malpractice filings. According to the National Center for State Courts, between 1999 and 2008 the number of medical malpractice cases actually filed fell by 25 percent. Another study, this one by the Harvard School of Public Health, asserted that 97 percent of the 1,400 medical malpractice cases analyzed by the study had merit.
Further, according to a 2007 report by the National Association of Insurance Commissioners, the total costs incurred defending medical malpractice claims and compensating the injured was $7.1 billion. While at first glance this seems like a lot of money, in proper perspective, however, this amounts to about 0.3 percent of total healthcare costs ($2.2 trillion).
Fee-Shifting: "Loser-Pays" Statutes Unfairly Burden Shift to the Injured
One of the barriers to filing suit advocated by those seeking tort reform is instituting a loser-pays system. This means that if the plaintiff loses his or her medical malpractice case, that injured victim would not only bear the expenses of the injury but would also have to pay the defense's costs. Medical malpractice cases are very expensive and insurance companies often employ high-priced attorneys and expensive experts to defend the claim. A loser-pays system would shift these costs to the injured if he or she does not prevail on the malpractice claim.
While this type of fee structure may serve a gate-keeping function, the effect of a loser-pays system is to effectively bar valid claims based on who has the deeper pockets-the victim or the insurance company. Many injured victims, whose cases do have merit, may not bring claims for fear of losing and having to incur the defense's costs. There is no perfect way to predict legal success or failure; a loser-pays system forces the victim to bear that risk.
Loser-pays is not reform. It is purely a barrier to filing suit. Discouraging an injured person from pursuing compensation for their injuries, medical bills, pain and suffering, lost wages, and other costs associated with living with the consequences of a medical professional's negligence is not a cure for rising medical costs.
Increased Premiums are not Solely Caused by Medical Malpractice Lawsuits
Tort reformers claim that because the costs associated with defending and paying for medical malpractice claims are so high and difficult to control, insurance premiums for both doctors and patients have increased. The reasoning for controlling lawsuits is then that if legal costs are controlled, premiums will go down.
A researcher at the National Bureau of Economic Research and Americans for Insurance Reform reports that there is no connection between malpractice payouts and the rise in insurance premiums. In fact, in 2009, on average, liability premiums were lower in states WITHOUT compensation caps than states with caps. Americans for Insurance Reform further reported that after tort reform legislation was passed in Texas, Florida, Oklahoma and Ohio, insurance premiums either went up or were not reduced.
Predicting the Damage of a Mistake Before it Happens: Predetermined Caps on Malpractice Recovery
Controlling non-economic damages through preset limits is also another method advanced by proponents of tort reform to reel in the medical malpractice market. An example of a non-economic damage is the money allocated to the pain and suffering experienced by the injured victim. The maximum amount of non-economic damages would be preset in an effort to control costs associated with malpractice lawsuits-often the cap proposed is $250,000 (the Florida Legislature is currently considering a cap at this amount).
Caps, however, disproportionately affect the injured victim. Damage caps serve as yet another barrier to filing suit, similar to the loser-pays fee structure, dissuading the injured from bringing a malpractice suit. Non-economic damages also serve to punish negligent doctors, surgeons, nurses, hospitals, etc.; implementing damage caps lowers the incentive to provide higher-quality care.
Getting Back to the Roots of Medical Malpractice: Remembering the Purpose
Medical malpractice claims are intended to compensate the injured for the mistakes of health care professionals in whom they trusted to do no harm. Malpractice settlements and jury verdicts provide compensation for bills, lost wages and other costs faced by an injured victim as a result of a medical professional's mistake.
Medical malpractice lawsuits also serve to hold doctors, nurses and other medical professionals accountable for maintaining accepted standards of care within their profession. When health care professionals are punished for their mistakes, the hope is that they will not repeat the same, saving another patient from the same injury in the future.
Reform May Rightly Be the Answer, But Insurance Reform Should Be More Closely Examined
Although tort reform is a hot topic and many are at least vaguely familiar with it, a less-talked about, but arguably better, solution is insurance reform. Improving competition within the insurance market place may be the first place to start. A 2010 American Medical Association report noted that the absence of competition in the health insurance market hurts, rather than helps, patients.
Controlling medical costs on the backs of the injured through tort reform is not the answer. It is the insurance companies who are profiting most off of high premiums, not malpractice victims seeking a way of affording the life that a medical mistake has forced them to live.
