(Tort Reform)
in Medicine
Some Numbers
In 2003 insurance premiums paid by all health care professionals (dentists, anesthesiologists, etc.) came to $11 billion. Americans spent $1.5 trillion on health care that year. $11 billion is less than 1% of $1.5 trillion (from pages 1-14 in this book). How is something that comprises less than 1% of the total cost driving up costs enough to warrant passing legistlation preventing injured citizens from having their 14th Amendment right (according to a growing number of state supreme courts) to equal access to court?
Numbers Aside
Whatever you believe about the financial aspects of the issue, is it right to deny people their rights because giving them their rights might be expensive?
Normal
People overestimate their own grievances and underestimate those of others. This has been well studied in psychological circles. Doing it has been refined to an art in medicine. Take, for instance, their belief that they and only they, need liability limitations. If you want to see someone in medicine look baffled, tell them that patients need liability limitations more than health care professionals do. They even imagine, and say, that their having liability limitations is better for patients.
How out of touch can a group of humans be?
The Magna Carta & The Constitution
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.
According to a 5-2 decision in the Supreme Court of the State of Florida, “The cap on non-economic damages serves no purpose other than to arbitrarily punish the most grievously injured or their surviving family members.” In Florida liability limitations were declared unconstitutional and were declared to violate the 14th Amendments right to equal protection. At least 7 state supreme courts have made similar decisions. 
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 further below.
The justice system must not only be fair, it also must be available. The preservation of a fair and available civil justice system demands that policy makers 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 health care, some sources say that those costs comprise only about one half of one percent of health care 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 in line with the underlying costs being compensated – the medical costs that 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
There already is system in place that weeds out most lawsuits even when they are legitimate. In the first place, patients have to persuade an attorney that their cases are worth the time and expense. Almost all the legitimate cases as well as the frivolous ones get weeded out right there (see the study by Harvard researcher Dr. David Studdert). 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 isn’t settled out of court, it is presented to a jury. If 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.
Even before the scrutiny of judges, of the patients with legitimate grievances, only one in some thousands can get a lawyer even when there are no liability limitations (again, see Studdert).
Tort reform is not about weeding out “frivolous” lawsuits. There are mechanisms for that already. Tort reform is about keeping injured patients out of court. In some locations liability limitations have made it so that there are no more medical malpractice claims. See if you can find one such area where the cost of medicine came down as a result.
The connection between belief and self interest
is 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 its own self-serving delusions. 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.
Do you know of anyplace where reducing accountability increases, rather than decreases, good behavior? According to the CDC medicine is not such a place.
According to the CDC, the collection and calculation of surgeon-specific, surgical site infection rates when disseminated to surgeons reduces surgical site infection rates in all published studies (the report is on their site at this link). In other words, accountability produces behavior that saves lives. In what forum other than court can a patient hold medicine accountable in order to encourage better behavior? If you think there is another forum, you are drinking their Kool-Aid and grossly under appreciating what might be the primary grievance 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.
Another example is 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 decrease in accidents.
Feeling safe kills
Medicine is the greatest source of preventable injury and death in the United States. But medicine says that making health care workers feel safer by making them less accountable will bring down the cost of medicine. Even if that were true, it will result in more injuries, disabilities and deaths. Shouldn’t the cost to patients be part of this equation?
Self Interested Delusion
In other fields and in other countries, feeling safe and being unaccountable produces worse results. Yet health care in the USA has persuaded the government that making health care 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 there 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.
The government of the United States sides with providers over patients when it passes liability limitations for providers without also giving the same protection to patients. One must sigh at the fact that they don’t even know why patients need that protection. But they get all of the government gets their information about health care from health care providers. Another reason for why there need to be State Patients Boards to advocate for patients the way state medical boards advocate for providers.
In the USA there is supposed to be fairness
produced by checks and balances
In the USA the Constitution prohibits favoring one person over another. The Fourteenth Amendment guarantees equal protection before the law. But in health care they believe they deserve more protection. Health care workers get special liability limitations that patients do not get. They are favored over patients before the law.
Disparity Test
For instance, in some communities when a physician rapes you the most for which you can sue him 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. This has a chilling effect on the ability of the patient community to protect itself from a health care worker who either is inept or untrustworthy. 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. Their job is to defeat patients. But you, the patient, cannot get a lawyer to sue the doctor because the $250,000 cap is too little to be worth the time to represent you.
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 (also the conclusion of a study of the National Practioners Databank – see five-percent). Giving liability limitations to that 5% 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. Right now patients cannot warn each other about problem providers because they get sued when they try.
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 “frivolous” suits. So the motivation for medical interests is to get something done to stop the patients from complaining rather than do something to keep patients from getting injured and having something to complain about 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 the harm incurred by patients as a resultl.
The Consumer Financial Protection Bureau is another institution that says that access to the courts is essential fo fight and redress corporate wrongdoing. Somehow medicine has persuaded the country that consumer wrongdoing is the problem in medicine and has gotten laws passed to protect corporations. Who was at the table speaking up for patients when they made that argument?
Liability limitations turn a class of patients into targets
Do you know how careful people in health care 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 health care 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 health care workers when things go wrong and so health care workers are not as worried about them. People without large incomes inspire less concern in health care.
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 limitation laws existing today. Liability limitations create a group of people who have been dis-empowered 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 the 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. You are thinking about the letter of the law and now how it plays out in real life.
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 immunity
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 from 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 own interests are good for patients, and it has managed to persuade the government that patients will be better off when health care is less accountable for causing damage to them. I doubt in my lifetime progress will be made on that delusion.
Frivolous
Sometimes people bring medical malpractice claims because it is the only way they find out what happened to them (or their loved ones). How is anyone, including the patients, supposed to know if a claim is frivolous or not when no one even knows what happened? Sometimes the patient merely wants to prevent other patients from falling victim to the same problems, but cannot find out what the problem is. In these cases injured patients and their lawyers are discoverers and messengers, not the cause of the medical malpractice problem, but a possible solution. Unfortunately, medicine is so opaque and so little of what goes wrong gets reported that even with a claim it is a rare patient who finds out.
NEMJ
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 being heard before these laws are passed?
Physicians do not know the best interests of the patient community and cannot be presumed to be messengers for them. Neither do hospital administrators or anyone connected with the AMA. They have interests that conflict with the interests of patients. If they didn’t, they would have lobbied for patients to get liability limitations as well. And they would have created, rather than eliminated, mechanisms for redress for patients.
Instead they have created a world in which patients are unable to respond. When patients try to respond they become targets for everything from inattention to frivolous lawsuits to blacklisting. (Medicine hates its victims and treats them accordingly. You might have to sit in enough doctors offices asking to get iatrogenic injuries diagnosed to appreciate that.) Liability limitations don’t just make it so that patients cannot sue. They make it so that patients cannot even speak.
When was having providers be unaccountable ever good for consumers?
Isn’t it time patients had someone on their side in these matters? Like perhaps a State Patients Board?
See Freedom of Speech for Patients next.
The best way to reduce malpractice claims is to reduce the amount of malpractice, as is shown in the studies cited in this paper on another site.
A page about a yet another precedent protecting any physician who teaches from any liability whatsoever is at this link. A time may come when patients will have to avoid health care facilities that teach.