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Separating Fact From Fiction About Medical Malpractice

By E. Drew Britcher

$0.40! That's how much adopting all of the proposed medical malpractice reforms would save a consumer on their $40 office visit. That's right $0.40! According to Malpractice Reform Advocacy Groups, changing medical liability laws could save $35.8 billion over five years in insurance premiums and defensive medical practices. This would average out to $7 billion per year. However, the total cost of health care in the United States in 1991 was $752 billion. Thus, accepting even the most onerous of changes, the doctors' own numbers prove less than a 1% savings.

Worst yet, in those states where Malpractice Reforms have been adopted, health care costs have risen at a higher rate than the national average. Both Indiana and California adopted comprehensive reform measures in 1975, in an attempt to harness escalating health care costs. However, between 1980 and 1990 Indiana's health care costs rose 139.4% and California's 143.9%, compared to the national average of 138.7%.

An intriguing element in the debate over the cost of health care is that the medical lobby has chosen to concentrate on the issue of "defensive medicine", only after it learned that savings in malpractice premiums would not impact the cost of health care. Before the medical industry's lobby decided defensive medicine was the place to concentrate, the American Medical Association had accepted that the fact that defensive medicine is good medicine. A 1975 article published in the Journal of the American Medical Association, expressed that just as defensive driving is a good practice for doctors to follow because it is beneficial to their patients.

Even the U.S. Congressional Budget Office, an independent arm of Congress, concluded in 1992 that much of this "defensive medicine" would probably still be provided for reasons other than concerns about malpractice. Good doctors seek to provide their patients with the best possible medical care with the lowest risk and would continue to do so even if there were no threat of lawsuits. Since much of this "defensive care" helps a good doctor reduce the uncertainty of their medical diagnosis, they concluded that physicians were unlikely to change their practice patterns dramatically in response to any malpractice reforms.

By concentrating on medical liability reform and defensive medicine, the medical industry has managed to deflect attention from the real cause of the escalating cost of health care costs and the delivery of competent medical services. "Self Referral" or "Self Dealing" has increased the cost of health care more than lawsuits. A 1991 report of the Consumer Federation of America found that doctors with a financial interest in a lab or other diagnostic service ordered almost double the number of tests than doctors without a financial interest. In addition, as a result of their built in source of patients and lack of competition, their prices were often 1/3 higher.

Other studies published in medical journals in the last two years have found that self referring doctors ordered tests up to eight times more often and their costs were up to 7 1/2 times higher. Perhaps an even more frightening element of the medical lobby's efforts is its refusal to recognize the full extent of malpractice in the United States. A Harvard Medical Practice Study published in 1990 found that in New York hospitals in 1984, there were more than 27,000 negligent adverse events, including nearly 7,000 deaths and almost 900 cases of extensive permanent disability. If one assumes that medical care provided in New York State hospitals is comparable to the Nation as a whole, than more than 80,000 Americans a year are killed by the negligence of their doctor and hundreds of thousands more are injured.

To place this in perspective, while 80,000 Americans are killed by their doctor's malpractice each year, according to Uniform Crime Reports published by the FBI, 15,000 Americans are killed by a firearm each year. Thus, while nearly five times more Americans are killed each year by medical malpractice than by guns, the medical lobby has managed to hide this from the public.

Despite the claim that there are3 too many lawsuits, medical researchers estimate that only one out of every ten malpractice victims bring a claim. This is because malpractice is hidden in two ways. First, there is an informal conspiracy of silence in the medical culture that enforces a "protect its own" philosophy. Second, most peer reviews and documentation regarding doctor's conduct are not open to the public, nor can any of the disciplinary findings about a physician be used against him in a lawsuit. The National Practitioner Data Bank, a national database of information on negligent doctors, cannot be accessed by patients. Despite the estimated 80,000 annual deaths, less than 4,000 doctor discipline cases are brought each year.

On a rare occasion that a State Medical Board does act against an incompetent physician, it is not uncommon that they are encouraged to simply move to another state. Thus, they can often avoid disciplinary proceedings by packing their bags.

One of the myths that has been perpetrated upon the public by the medical lobby, is that there has been an explosion in the number of medical malpractice claims. Despite the hundreds of thousands killed or injured, the number of claims is declining. Since 1985 the number of malpractice claims has dropped at an annual rate of 8.9%. Even the AMA's own statistics verify that the frequency of claims against physicians has declined. As a result of such information and their research, the Harvard Malpractice Study Team concluded "We do not now have a problem of too many claims; if anything there are too few".

Another myth is the assertion that there are vast numbers of unjustified claims. The costs associated with presenting a malpractice case, due to the requirement of expert testimony, combined with the time commitment malpractice cases require, leads to very restrictive screening processes by those lawyers who specialize in handling malpractice claims. Furthermore, one of the major New Jersey malpractice carriers utilizes a peer review system which finds that a significant number of cases are meritorious and properly settled. Thus, doctors do find errors in their colleagues' care that require compensating the injured patient.

The belief that medical liability awards are rising is also a without foundation. Patients bear a significant burden when making claims of malpractice against their physicians. The resources available to health care providers and their insurers are vastly greater than those available to their patients. Since malpractice carriers settle the obvious cases of malpractice, it is not surprising that the doctors win the majority of cases that go to trial. Although individual cases can be used to suggest we have run away juries, system wide reviews show that the average award is far less than the rare large verdict.

Interestingly, a study based on the experiences of one of New Jersey's malpractice carriers shows that it is the defensibility of one of the doctor's actions and not the severity of the patient's injury that is the dominant factor in whether a payment is made. An evaluation of medical malpractice claims published in the Annuals of Internal Medicine in 1992, found that only 12% of claims went to trial and of those that were tried, less than 1 in 4 resulted in any payment being made to the patient. Thus, the authors concluded, "Our findings suggest that unjustified payments are probably uncommon."

So what is the doctor's answer for the high cost of health care? No self-dealing? No! Their answer is to place arbitrary limits upon the claims of the most vastly injured.

Imagine that tomorrow your spouse or child, in the prime of their life, were rendered as some of my clients have been- able to think, feel pain and totally aware of everything that is happening around them, but unable to move their arms or legs, unable to eat except through a tube in their stomach and unable to live without total dependence on others for their survival. All as a result of medical malpractice. The medical lobby's answer to this tragedy is to call for a cap of $250,000 for such a victim's pain and suffering. And for what?

$0.40!

"The mission of Britcher Leone, LLC is to unite the professional disciplines of medicine and law to help the victims of physicians' malpractice and serious personal injury restore their future and the future of their families."
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