Whatever you might believe about the financial aspects of the debate, is it right to deny people their rights because giving them their rights might be expensive?
Something that is normal for people, and that has been well studied in psychology circles, is the fact that human beings overestimate their own grievances and underestimate those of others. Doing that has been refined to an art in medicine. Take, for instance, their belief that they and only they, need liability limitations. They even imagine, and say, that their having liability limitations is better for patients.
How out of touch can a group of humans be?
In 1985 in the case Zauderer v. Office of Disciplinary Counsel, The U.S. Supreme Court determined that new policy choices must harmonize with the protection of universal access to the courts, a right carved out for people in the Magna Carta and reaffirmed in the Constitution of the United States.
Liability limitations for physicians prevent injured patients from having access to the courts. That is a denial of rights to a certain class of people, as is explained below.
The justice system must not just be fair, it also must be available. The preservation of a fair and available civil justice system demands that policymakers look beyond the rhetoric and examine research that gives a clear-headed understanding of the landscape. For all the screaming about jury awards driving up insurance costs and therefore the price of healthcare, some sources say that those costs comprise only about one half of one percent of healthcare costs.
According to the RAND Institute for Civil Justice, trends in jury verdicts show that jury awards are not rising at staggering rates, but instead tend to increase in line with the rate of inflation and the underlying costs being compensated (medical costs are increasing at staggering rates). Research from The Institute for Civil Justice has also shown that most criticism of excessive jury awards ignores the fact that the liability system already has mechanisms for reducing such awards.
Frivolous Lawsuits and Award Reductions
Medicine routinely says we need to weed out the frivolous suits. The system already weeds out lawsuits even when they are legitimate. Less than 3% of patients with legitimate grievances can get lawyers (a lot less, see Studdert). Patients have to convince attorneys that their cases are worth the time and expense. That weeds out almost all the legitimate cases as well as the frivolous ones because fees for attorneys are contingent on winning enough to pay for the cases that lose as well as the minority that win. If the case isn't a big-money, easy-win case, it will be rejected. The vast majority of legitimate cases are not big-money, easy-win cases.
For the cases that do find lawyers, defendants frequently ask for a summary judgment, which means that a judge scrutinizes the facts and applicable law and then can dismiss the case on that basis. If the judge decides that the case has merit, then the case usually is settled out of court. If it is presented to a jury and the jury rules in favor of the patient, the judge still can modify, reduce, or set aside the jury's verdict. After that the defendant still can appeal the case to higher courts where even more experienced judges can then modify, reduce, or set aside a jury's verdict. Really big judgments rarely survive this process. Putting limitations on how much can be awarded reduces the number of legitimate cases that even get a second glance from lawyers in the first place.
Tort reform is not about weeding out frivolous lawsuits. There are plenty of mechanisms for that already. Tort reform is about keeping the injured out of court.
The connection between belief and self interest
unappreciated in medicine
The liability limitations debate is yet another example of the gap between truth and belief in medicine. Medicine has proved adept at persuading patients and the government to believe the self serving delusions of medicine. Some hundreds of thousands of patients die each year unnecessarily, millions more are injured unnecessarily, and medicine says the solution is to make medicine less accountable?
According to the CDC, the collection, calculation, and dissemination of surgeon-specific, surgical site infection rates to surgeons were found to reduce surgical site infection rates in all published studies (report on their site is at this link). That suggests that accountability saves lives. In what other forum can any patient hold medicine accountable? If you think there is another forum, you are drinking their Kool-Aid and grossly under appreciating one of the major grievances of the patient community.
Making the world safe for doctors
Have you seen the book Slow Moving Vehicles by Mary Roach? (You can read about it on the New York Times site at this link). Most crashes happen on dry roads on sunny days to sober drivers. That is where people feel safe, so they screw up. Same thing for large sport utility vehicles. People feel safe in them, so they crash them more often than cars in which they don't feel as safe.
Same thing for intersections.
A study followed what happened when 24 intersections, that originally either had stop lights or stop signs, were converted to roundabouts. Roundabouts require alertness to avoid disaster. People don't feel as safe in roundabouts as they do at stoplights. Roundabouts require adjusting speed and carefully merging with other cars. When the more comforting stop lights and stop signs were removed and roundabouts installed there was a 90 percent drop in accidents. The basic truth outlined in the book is that feeling safe kills.
Medicine is the greatest source of preventable injury and death in the United States. But medicine says that making the workers in that business feel safer and be less accountable will result in fewer accidents and injuries and deaths. That is self-interested delusion. That isn't the way it works in other industries or in other countries, but somehow healthcare in the USA has persuaded the government that making healthcare workers less accountable, and making them feel safer, is going to result in fewer accidents and less negligence. It doesn't work that way for those health care workers when they are driving to and from work, but once they get to work, the principles change?
It doesn't work that way in China
Have you read about the problems that consumers in China have with industries that cannot be held accountable for injuring their customers? In China companies almost never face financial penalties because their legal system is run by a Communist Party that routinely favors producers over consumers. So one of their largest milk producers thought it was worth the risk (the risk was only to the consumers) to add a toxic chemical to watered-down milk to keep costs down. It made over 50,000 children sick. Some died.
It's not supposed to be that way in the USA
In the USA the Constitution prohibits favoring one person over another. The Fourteenth Amendment guarantees equal protection before the law. But in healthcare they believe they deserve more protection. Healthcare workers get special liability limitations that patients do not get. They are favored over patients before the law.
For instance, in some communities when a physician rapes you the most you can sue him for is $250,000. But if you talk about the fact that he raped you, there is no limit on the amount for which he can sue you. His hospital has lawyers on staff to represent him. He has lawyers who will sue you even if they know they will lose money doing it. But you, the victim, cannot get a lawyer to sue the doctor because the $250,000 cap is too little to be worth the time for a medical malpractice lawyer.
Liability limitations create a disparity between the ability of providers and patients to seek redress in court in more ways than one.
Liability Limitations for Patients would be better
According to Dr. Sidney Wolfe, director of the Health Research Group at Public Citizen, 54% of malpractice payouts are paid by 5% of doctors. That means that 5% of physicians are causing more than half of the problems. Giving them liability limitations enables them to continue injuring patients. If liability limitations were given to patients, patients could warn each other about who those 5% are and could avoid getting injured in the first place.
Is the ultimate goal the well being of patients or isn't it? No one in medicine ever will warn patients about problem operators. Medicine's view of the world is that the problem is that injured patients sue. So the motivation for medicine is to get something done about that rather than do something to keep patients from getting injured in the first place. They can see more patients and make more money if they don't have to take the time to keep them safe, as long as patients can't sue them for it.
Liability limitations turn a class of patients into targets
Do you know how careful people in healthcare become when the patient is a lawyer? Medical professionals behave differently according to the perceived risk. They are not supposed to, but they are humans and they do.
Liability limitation laws inadvertently cause healthcare workers to be less concerned about certain people and more concerned about others. With liability limitation laws, loss of income can be the only thing for which a suit can be brought when medical personnel ruin lives. If a large enough income hasn't been lost, that alone can make it impossible to get a lawyer, no matter how legitimate the case, because there is not enough money in it for the lawyer. So retired people, non-working mothers, and other people without large incomes cannot sue. They have less capacity to cause problems for healthcare workers when things go wrong and so health care workers are not as worried about them. People without large incomes inspire less concern in healthcare.
Their wallets versus our lives
If a surgeon happens to be having a bad day, or happens to harbor a prejudice against a particular kind of person, or is jealous, or angry, or libidinous, or experiencing any of the other passions or fatigues common for humans, liability limitations reduce normal inhibitions against becoming inattentive or acting out when the patients are from a certain class of people - people without large incomes to lose.
A bank president can expect more careful attention than a waitress. A bank president would be less likely to be ignored, or to become the victim of a exploitation or worse, and his wife less likely to get groped than someone perceived to have less ability to respond afterwards. Witness Dr. James Burt's choosing victims who would be relatively powerless to respond, even before the passing of the liability limitations laws existing today. Liability limitations create a group of people who have been disempowered from responding and thus have become targets for everything from inattention to violence.
Protect the Patients
Patients should be as protected as physicians. If liability limitations protect physicians even when they commit violent offenses against patients, liability limitations should protect patients who speak about those offenses. If there is to be a public discussion about patient safety, first it must be safe for patients to speak.
If you are a lawyer who thinks this is confusing civil and criminal law, click here.
4.1% of sentinel events in medicine are
assault, rape and homicide
Removing accountability probably does not halt escalating costs in the short term and could increase costs in the long term. Patients who are safe are more likely to keep working and keep paying taxes and not file law suits than patients who are injured. Patient safety requires sunshine and accountability. Sometimes accountability is synonymous with liability.
Charitable organizations have some immunity from prosecution. The thinking is that if you volunteer to do something for free for someone, they should not be able to sue you if they do not like the way you did it. So doctors at the Eastern Virginia Medical School in Norfolk claimed that the organization they belong to is non-profit and so they should be immune from lawsuits. Another way to look at it is that well-paid physicians who mainly treat paying and insured patients claimed they should be immune to lawsuits because they make a small contribution to the poor. The court granted them their immunity. Now other doctors are trying it. Patients should worry.
Medicine routinely manages to persuade itself that its self interest is good for patients, and it has managed to persuade the government that patients will be better off when healthcare is less accountable for the damage it causes. Medicine routinely believes that whatever is good for itself automatically will be good for patients. I doubt in my lifetime progress will be made on that delusion.
According to yet another article about malpractice suits, this time in the New England Medical Journal, portraits of a malpractice system stricken with frivolous litigation are overblown. "Frivolous suits" are not the problem, but count on physicians and the AMA to continue to shout that they are while lobbying for legislation to be passed.
By the way, when these laws are passed, wouldn't fundamental fairness require hearings allowing all the sides effected to be heard? Is anyone aware of anyone representing patients getting a hearing before these laws are passed? Physicians do not know the best interests of the patient community let alone represent it. Neither do hospital administrators or anyone connected with the AMA. Some knowledgeable patient advocates need to be given adequate notice and an opportunity to be heard. If nothing else, perhaps copies of this page should be mailed to some legislators.
A page about a new precedent protecting teaching doctors from any liability whatsoever is at this link.