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Medical Malpractice—an Unaddressed Problem in Health Care Reform

Hayden Hollingsworth
Hayden Hollingsworth

In a recent column about the causes of the health care crisis I mentioned that one player has been overlooked:  the consumer.  As congressmen of both parties have gotten the message that there can be no easy solution and are out on the hustings testing the waters, they are learning my assertion that we are our own enemies is true.  Those who would stifle honest debate by shouting down those with whom they disagree are trying the patience of all of us who recognize that something must be done and it must be done v-e-r-y  c-a-r-e-f-u-l-l-y.

The news these days is filled with the complexities we face but there is another item in the debate that has completely disappeared in the hot air of overblown rhetoric:   Malpractice and tort reform.  The amount that this factors into health care expenditures is not tremendous, but it is too much to be ignored.

Our system of malpractice litigation is totally out of kilter.  To be sure, there are patients who are harmed by negligence and should be remunerated.  In the highly complex world of medical care bad things do happen and it is often not because someone made a mistake or there was negligence.  Physicians are so sensitized to the possibility of law suits they feel compelled to leave no test unordered, no procedure not applied to protect themselves.  No one denies this drives up costs significantly; how much is open to debate.

At the risk of oversimplification there are things that could change this drastically and make the system accessible while being more just.

Malpractice should be removed from the tort system and treated more like workman’s compensation.  A system to deal with medical injury should include experts, forensically trained and certified, who are appointed by and answerable to the court.  As it now stands the defendants and the plaintiffs each have their own experts who are chosen because they support one side.  If they were court-appointed, then these experts would not have an adversarial position but could offer unbiased judgment of the facts and settlement of the case.  Our Constitution provides for trial by peers but no jury and few judges are qualified to hear the complex cases medical malpractice often involves.  Adjudication by a board of certified forensic experts and specially trained court officials would assure fair and equitable treatment for all.

The American Trial Lawyers Association, recently re-named The American Association for Justice, strongly opposes any changes.  Under the current system, if they win the case the plaintiff’s attorneys receive 40% of the verdict; if they lose, they get not a penny.  In either case that’s not fair.  The plaintiff’s attorneys have huge expenses in preparing for trial; they are entitled to compensation even if they lose.  It doesn’t take much imagination to understand how driven the plaintiff’s attorneys may become to win a case in which they have several hundred thousand dollars invested in discovery, depositions, and expert witnesses.  The United States is the only nation where such a contingency system is in operation.

The malpractice insurance company frequently makes the decision about whether to settle; their legal fees and the possibility of losing may lead them to make an offer.  Even in cases of questionable merit, it becomes a business decision, and the plaintiffs attorneys know if they are persistent long enough, the insurance company may well opt to settle.

The American Association for Justice is adamant that the system must be left alone.  They argue that it allows injured patients with no resources to sue.  True, but we are figuring out a way for indigent and uninsured patients to get medical care; we’ve been doing it for years with Medicaid and uncompensated care.  The same should be true for medical malpractice claims.

As an expert witness in countless trials, I know whereof I speak.  I also know that the chances of the system being changed are slim.  When your ox is about to be gored, things take on a different light.  The American Association for Justice has a lot of oxen and they are well-protected by legislatures, both federal and state, which are controlled by lawyers.

As for the raging debate about health care, no one . . .  not patients or physicians, nor hospitals, insurance companies, or the pharmaceutical industry . . . are going to be served by ranting, raving, and raised voices.  Maybe when the smoke clears, tort reform can be revisited.  That assumes we will still have a viable system of medical care.

By Hayden Hollingsworth
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