The rationale for the proposed medical malpractice restrictions according to the sponsors of the bill is that jury trials in medical malpractice cases are "a costly and ineffective mechanism for resolving claims of health care liability and compensating injured patients." Additionally, the authors of the Bill contend that the threat of a lawsuit "is a deterrent to the sharing of information among healthcare professionals which impedes efforts to improve patient safety and the quality of care." Among the stated goals of H.R. 5 is to "reduce the incidence of defensive medicine and lower the cost of health care liability insurance."
It is impossible to argue that a one-size-fits-all pain and suffering award of $250,000 is a just way to make a victim of medical malpractice whole after he suffers tragic debilitating injuries. Under the circumstances, Representative Gingrey (a retired obstetrician who has been sued for malpractice three times) has taken a page out of Orwell's 1984, and H.R. 5 is drafted as if came straight from the Ministry of Truth. The bill is said to be designed "to ensure that persons with meritorious health care injury claims receive fair and adequate compensation." In actuality, H.R. 5 takes away a medical malpractice victim's ability to have a jury of his peers decide what a fair measure of compensation is. Representative Gingrey contends that H.R. 5 will benefit victims of medical malpractice "by reducing uncertainty in the amount of compensation provided to injured individuals." The only time that the $250,000 cap on damages will result in certainty, however, is when it limits a jury award that would have otherwise been higher. Somewhat ironically, the New York Times recently reported that the $250,000 cap is half of what Representative Gingrey settled his last medical malpractice litigation for, after he was accused of providing negligent care to a pregnant woman.
Tort reform advocates have been attempting to shift the burden of medical mistakes from the health care industry to victims of negligence for years. The argument is cloaked in self-righteousness: Victims' rights have to be curbed, and after this occurs, physicians will no longer be afraid to disclose errors. This will cause a change in the culture of medicine and allow medical errors to be analyzed and approached in a new more comprehensive way. Unfortunately, medical literature published by doctors (not lawyers) and the recent history of the patient safety movement provide plenty of reasons to be skeptical of this trickle-down approach to safety.
-I-
H.R. 5 will
drastically restrict innocent victims' rights of redress in medical malpractice
cases, while rewarding the health care profession with immunity for its failure
to police itself. This is not only incredibly irrational from a public policy
standpoint, it is also immoral because for the last ten years, an epidemic
medical malpractice problem in the United States has resulted in hundreds of
thousands of unnecessary deaths, and despite this, advances in patient safety
have stalled and error rates have held steady.
In November 1999, the Institute
of Medicine , a branch of the National Academy of Sciences,
published a study declaring that a threshold improvement in the quality of
health care was urgently needed because medical negligence committed in
hospitals in the United
States
Twelve years ago, To Err Is Human announced that the health
care industry was "a decade or more behind other high-risk industries in
its attention to ensuring basic safety." To Err Is Human, supra, at 5. The report was so shocking in part
because "silence surrounds" the issue of medical malpractice. - undertake a national effort to create leadership, research, tools and protocols in the to enhance the knowledge base about safety;
- identify and learn from errors through immediate and strong mandatory reporting efforts, and voluntary reporting efforts, with the aim of making sure the system is made safer for patients;
- raise the standards and expectations for improvements in safety through the actions of oversight organizations, group purchasers, and professional groups; and
- create safety systems inside health care organizations through the implementation of safe practices at the delivery level. Id. at 6.
On Nov. 18, 2010, the New England Journal of Medicine
published a study that attempted to quantify the impact of patient safety
measures on in-patient hospital admissions. Christopher P. Landrigan, M.D. et
al., Temporal Trends in Rates of Patient Harm Resulting from Medical Care, 363 New Eng. North Carolina Id.
It is difficult to imagine the lack of results in the last
twelve years in the patient safety movement being permitted to occur in any
other industry. If ten years ago jumbo jets were falling from the sky every day
and we learned from a study (conducted by the airline industry itself) that the
resulting individual tragedies were avoidable if air carriers implemented
policies and procedures in a systematic way to promote safe practices, citizens
would demand change and there would be bipartisan support for government
intervention to stop preventable deaths. The idea that thousands of deaths
already occurred because of air carriers' failure to follow safety standards
would be considered utterly scandalous. You certainly would not expect people
to stand idly by while the planes continued to full from the sky every day for
ten more years. If the planes did keep falling, nobody would dream of
suggesting that we should reduce airline accountability to the victims who were
dying because of preventable errors.
-II-
Given the last twelve-year history of the patient safety movement, it
is irrational to suggest that providing more immunity to the health care
industry will result in "an increased sharing of information in the health
care system which will reduce unintended injury and improve patient care."
Advocates of tort reform hypothesize that the one of the reasons that medical malpractice is such a pervasive problem is that the health care industry is unable to examine errors in a systematic way because doctors are afraid to admit when they make mistakes for fear of being named as a defendant in a lawsuit. The theory is that if the financial consequences of medical mistakes are reduced, doctors will be more honest about admitting them, and this will lead to more data about errors, which will be analyzed and evaluated. Then, a "systems approach" will result in a safer health care sector.
The unsupported optimism that immunity will eventually result
in a more honest approach to medical mistakes completely ignores the fact that
physicians have always been required to be honest about medical mistakes, but
have historically refused to act this way. Under the American Medical
Association Code of Ethics, physicians have an ethical obligation to advise a
patient when they commit consequential acts of medical malpractice when "a
patient suffers significant medical complications that may have resulted from
the physician's mistake or judgment." Am.
Med. Ass'n Code of Medical Ethics A-02 Edition, E-8.12 Patient Information,
77. Similarly, the American College of Physicians Ethics Manual mandates
disclosure of errors if disclosure of this information is "material to the
patient's well-being." Lois Snyder & Cathy Leffler, Ethics Manual,
Fifth Edition, 142 Annals Internal
Medicine 560, 563. Finally, the Joint Commissions on Accreditation of
Health Care Organizations requires that patients be informed of unanticipated
results that differ from the expected outcome in a significant way when a
medical error occurs at a hospital. Joint Comm'n on Accreditation of Health
Care Orgs., Revisions to Joint Commission Standards in Support of Patient
Safety and Medical/Health Care Error Reduction 12 (2001).
Disclosure of medical errors is not only ethically mandated,
literature supports that it is consistent with the fiduciary nature of the
physician-patient relationship, since in most instances, disclosure of errors
will benefit a patient. C.J. Wusthoff, Medical Mistakes and Disclosure: The
Role of the Medical Student, 286(9) JAMA 1080,
1081 (2001). Disclosure helps gain the cooperation of a patient who has been
harmed by an error. Id. Further,
understanding the cause of unexpected problems can relieve anxiety about
recovery or complications. Id.
Finally, some commentators have suggested that since patients need information
about errors to make decisions about their medical care, disclosure of
malpractice is part of a physician's duty to provide a patient with informed
consent. Thomas H. Gallagher, Wendy Levinson, Disclosing Medical Errors to
Patients: a Status Report in 2007, 177(3)
Canadian Medical Association Journal 265 (2007).
In theory, physicians agree that they have an ethical
obligation to disclose medical errors. One study suggests that between 70 and
90% of the physician population believes that doctors should disclose errors to
patients. Kathleen M. Mazor et al., Communicating with Patients about Medical
Errors, 164 Archives of Internal Medicine
1690, 1692 (2004). In another study, 97% of the faculty and resident population
surveyed indicated that they would disclose medical errors that caused minor
harm, and 93% indicated that they would disclose an error causing major harm.
Lauris Kaldjian , et al. Disclosing Medical Errors to Patients: Attitudes and
Practices of Physicians and Trainees, 22(7) J
Gen Intern Med 988-96 (2007).
Regrettably, while physicians are ethically obligated to
inform their patients of consequential medical malpractice and studies suggest
they intellectually support this principle, theory has not translated into
practice. A study revealed that only 24% of residents surveyed reported the
medical errors they committed to their patients. Albert Wu, et al. Do House
Officers Learn From Their Mistakes? 12 Quality
& Safety Health Care 221, 224 (2003). Another study estimated that
nationwide, physicians are only disclosing errors to patients about 1/3 of the
time. Robert J. Blendon et al., Views of Practicing Physicians and the Public
on Medical Errors, 347 New. Eng. J. Med.
1933, 1935 (2002).Doctors have always been ethically required to disclose medical errors, partially because it is a means to ensure good care. That has not happened though. Moreover, since To Err Is Human was published twelve years ago, saving 1.2 million lives was not enough incentive to cause error reporting systems to develop and preventable errors to be analyzed. Under the circumstances, it absurd to suggest that (a) error reporting will increase and (b) a safer health care system will evolve once the impact of limiting malpractice victims' right of redress trickles down through the health care system.
-III-
Attempts to justify restricting the rights of medical malpractice
victims as a means to decrease the cost of "defensive medicine" are
misplaced because (a) the health care industry vastly exaggerates the problem
of defensive medicine, (b) other factors
have increased physicians' propensity to order more diagnostic studies and make
additional medical referrals, and (c) studies have repeatedly shown that
capping medical malpractice damages does not impact how doctors practice
medicine.
Those who advocate tort reform often point to the problem of
defensive medicine as a justification to limit the right of redress of victims
of medical malpractice. The argument is that the “pervasiveness of malpractice
litigation" causes health care providers to “order tests or procedures in
excess of their actual need to protect themselves from the risk of lawsuits.”
Tara F. Bishop, MD, Alex D. Federman, MD, MPH & Salomeh Keyhani, MD, MPH,
Physicians’ Views on Defensive Medicine: A National Survey, 170 Arch Intern. Med. 1081 (2010).
Accordingly, malpractice litigation is seen as creating a problem of
over-deterrence, with lawsuits causing doctors to take more precautions than
they otherwise should when they treat their patients.
Doctors certainly
think the threat
of malpractice causes them to be excessively cautious. Studies surveying doctors for the last 30 years
reveal that anywhere between 21% to 98% admit
engaging in defensive medicine.
J. William Thomas et al., Low Costs of
Defensive Medicine, Small Savings from Tort Reform, 29 Health Affairs 1578-1584
(2010). Nevertheless, it is
hard to reconcile physicians’ perception
that they are
acting in an
overly cautious manner with reality.
Although the last few years
have seen an escalation in the discussion about the
costs of defensive medicine,
over-cautious behavior is not evident in
outcomes because medical error rates
have held steady. Christopher P.
Landrigan, M.D. et
aI., Temporal Trends in Rates of
Patient Harm Resulting from Medical Care,
363 New Eng. J.Med. 2124 (2010).
Bias is one culprit here, as some commentators have pointed
out: “Because many physicians are attuned to defensive medicine as a problem,
and their professional organizations agitate prominently against it,” studies that attempt to quantify
the scope of the problem of defensive medicine by surveying physicians are prone to a
“socially-desirable response bias.” David M. Studdert, LLB, SeD, MPH, et al.,
Defensive Medicine and Tort Reform: A Wide View, 25 J. Gen. Intern. Med. 380 (2010).
In addition to the problem of bias, surveying doctors to
attempt to determine whether the threat of a medical malpractice lawsuit causes
over-utilization has other inherent defects. First, there are many other causes
for profligate testing in medicine, including: 1) the public culture of
entitlement; 2) the expectation of immediate and perfect results; 3) the
extraordinary increase in diagnostic and treatment options today; and 4)
growing specialization and fragmentation of care. Marcel Frenkel, M.D., M.B.A.,
Consensual Medicine and the Therapeutic Partnership: Reducing the Costs of
Defensive Medicine and Litigation, 25 J.
Med. Prac. Mgmt. 78 (2009). Additionally, managed care contributes to
over-ordering because it requires faster analysis and decisive conclusions. Id.
Studies that have attempted to quantify the costs of
defensive medicine by looking at the impact that tort reform has had on health
care savings have obtained inconsistent results. For example, while some
studies have found lower health care costs in states with tort reform, others
noted a weak relationship between tort reform and health care savings. Still
other studies found no relationship at all. J. William Thomas et al., Low Costs of Defensive Medicine,
Small Savings from Tort Reform, 29 Health
Affairs 1578, 1579 (2010). These varied results have been attributed to the
fact that researchers invariably focus on limited sets of clinical conditions
or specialties. Id. at 1579.
In 2009, a broader and more comprehensive study was
undertaken to ascertain the impact of tort
reform measures on health care costs by examining Medicare spending in
states that adopted tort reform. Frank A. Sloan & John H. Shadle, Is There
Empirical Evidence for ‘Defensive Medicine’? A Reassessment. 28 J. Health. Econ. 481 (2009). The study
concluded that its analysis, and those of previous studies, suggested that
contrary to statements in the media, caps on damages and the abolition of
punitive damages did not have a significant impact on the reduction of payments
for the studied Medicare services. The researchers’ overall conclusion was that
“tort reforms do not significantly affect medical decisions, nor do they have a
systematic effect on patient outcomes.” Notably, these results meshed with the
Congressional Budget Office’s estimate that if tort reform were enacted in the
form of a $250,000 cap on noneconomic damages, a $500,000 cap on punitive
damages and a decrease in statute of limitations, the savings from a
combination of: 1) decreased use of services from less defensive medicine; and
2) lower malpractice insurance premiums would be merely .5% of the annual
national expenditure of health care. Cong. Budget Office, Letter to Honorable
Orrin G. Hatch, U.S. Senate, Oct. 9, 2009, available at www.cbo.gov/ftpdocs/106xx/doc10641/10-09-Tort_Refrm.pdf.
Finally, at face value, the defensive medicine argument is
premised on an outdated and paternalistic view of the physician/patient
relationship that is contrary to law. In most circumstances, the law compels physicians to empower their patients
to make consequential medical decisions by requiring a doctor to provide a
patient with informed consent. Simply put, it is a mistake to assume that
reduced exposure to liability will allow doctors to be less cautious, because
doctors are no longer the only decision makers in this process.
-IV-
By capping recovery,
H.R. 5 will inadequately and arbitrarily compensate victims of severe incidents
of medical malpractice and simultaneously make smaller medical malpractice
cases economically impossible to pursue. This later problem will have a
disparate impact on the poor and elderly.
It goes without saying that an arbitrary cap on non-economic
loss damages will negatively impact victims of medical negligence injured the
worst. In addition to this, damages will make cases for many victims injured
less severely by medical malpractice financially unviable. Medical
malpractice case usually require a plaintiff's attorney to "front"
expenses. Even the most simple
cases this amounts to at least
$25-$30,000. The costs are significantly more if the case goes to trial. More importantly, these cases also almost
always require a malpractice victim's attorney to invest hundreds of thousands
of dollars in attorney time to prosecute, because they deal with complex issues
of science, require extensive discovery and significant preparation during
every stage of the litigation process and they are always vigorously defended.
Assuming a contingency fee of 33%, a case usually has to have a potential financial
recovery of over several hundred thousand dollars for an attorney to consider
it financially viable to pursue. Therefore, if damages in these cases are
capped at $250,000, unless a patient suffers a significant future loss of
income as a result of a medical mistake,
the overwhelming majority of medical malpractice cases will no longer be
financially viable for attorneys to prosecute.
Make no mistake about it, capping malpractice damages in the face of a
permanent life-altering injury at $250,000 will hurt nearly every medical
malpractice victim. Nevertheless, since a significant future wage loss will
become the new polestar of whether a malpractice case is financially
viable, H.R. 5 will disparately impact the elderly, who do not have
a lengthily work life expectancy, and the poor, who will not show a dramatic
future wage loss.
CONCLUSION
Juries sit on cases every day in the United States and
determine whether accountants, attorneys, architects and engineers commit
professional malpractice. Indeed, we rely on our citizens to determine whether
some criminals should be sentenced to death. H.R. 5 assumes that juries
are incapable of deciding the appropriate measure of compensation for people
who have been injured by a health care provider's negligence. Notably, H.R. 5 does not posit that people
are ill-equipped to deal with complex medical issues, and it does not suggest
that a jury cannot determine whether a medical provider made a mistake, it
simply assumes people aren't smart enough to calculate what amount of damages
should be awarded to patients injured in these circumstances. The fact is that
juries make this identical determination in virtually every significant civil
case that is decided by the courts, and no cogent explanation has ever been
offered about why juries are uniquely incapable of making these kinds of
calculations in medical malpractice trials.
Like every other business industry, the health care
industry is influenced by a profit motive. Promoting safety is time consuming
and expensive. Historically, lawsuits have actually helped advance safety
measures in industries reluctant to take such initiatives on their own. In the
face of a medical malpractice problem that by its own admission has reached
epidemic proportions, the health care industry failed to take significant
measures for the last twelve years to stop hundreds of thousands of deaths. A
reasonable analysis leads to the conclusion that H.R. 5 will only exacerbate
these problems.
