February 5, 2003
By Ronald Gerughty
Is there no end to the deception and blatant manipulation
of the Bush administration? Is there not one issue they will
address honestly? Apparently not, as now they have begun their
campaign of obfuscation concerning medical malpractice. There
is no malpractice crisis, it's just a ploy to accomplish yet
another Republican rollback. Jury awards and trial lawyers
are not the culprits of this contrived exigency, as he would
have us believe; the real miscreants are the insurance scalawags
and the doctors. Yet, Mr. Bush would have us believe he can
solve this problem merely by capping the compensation granted
to deserving victims.
Mr. Bush has ratcheted up his rhetoric for tort reform. Long
an advocate of limiting corporate and medical liability, he
hopes to advance his agenda at the expense of the Democratic-leaning
trial lawyers and the people of this nation. It is payback
time. By enacting his "reforms," he can reward the fat cats
who supported his appointment as President. He is not concerned
with the injuries done to individuals by malpracticing doctors,
or how to equitably reform the system, but only about limiting
the amount paid out so that those who would benefit from this
legislation could further their unmitigated greed.
A quick glance at the history of his tort reform is revealing.
Shortly after his election in 1995, Texas Governor Bush declared
his intention to eliminate "frivolous lawsuits." In collusion
with Texas corporate executives, he pushed through a series
of laws that insulated Texas corporations from being sued
for reckless behavior. In essence, those laws prevented injured
persons from recovering rightful compensation for their injuries.
A provision, included in his legislative package, made it
more difficult for patients to sue their doctors for malpractice.
This regressive legislation is what he is now pushing federally.
Relying on the Republican lexicon, Mr. Bush cites these "frivolous
lawsuits" and high jury awards as the fundamental causes of
the current alleged malpractice crisis - a claim with some
merit, but fecklessly misleading.
Let's examine Mr. Bush's first contention: frivolous lawsuits
as a primary cause of increased medical malpractice insurance
Anyone can sue a doctor if they have the legal expertise
or can find a plaintiff's attorney who will take the case.
Plaintiff's attorneys usually work on contingency, if they
believe the case to be meritorious and winnable. Since they
receive little or no remuneration up front, they must foot
all the expenses to review, write, and file the case, not
to mention the costs of litigation per se. Given the time
and financial investment in such a case, plaintiff's counsel
must determine if the case is indeed meritorious. How is this
Since medical malpractice is negligence and since negligence
is a deviation from the accepted standard of care, it must
be proven by the testimony of experts in the applicable field
of the defendant. Was there a duty owed to the plaintiff by
the defendant? Was that duty breeched? If so, how? Was there
an injury to the plaintiff? Was that injury due to the defendant's
deviation from the accepted standard of care? These questions
and more must be answered to the satisfaction of plaintiff's
counsel in order to go forward. If the case were frivolous
(non-meritorious), most all lawyers would reject it and there
would be no case to file. Therefore, there would be no settlement
or jury award and there would be no impact on the cost of
Having been involved in forensic medicine/dentistry since
1953, I have reviewed thousands of malpractice claims over
the years. It has been my experience that when I have been
asked to render an opinion as to the merit of a case by a
plaintiff's attorney and I have informed him or her that the
case was non-meritorious, it was, without exception, dropped.
Regrettably, I cannot say the same for defense attorneys,
for when I have rendered an opinion that the case involved
a deviation from the standard of care, they immediately dropped
me and pursued someone else who would, perhaps, give them
an opposite opinion. This is how the system works.
Unfortunately, some unscrupulous plaintiff's attorneys would
file anyway. These ones would require the plaintiff to foot
all the bills upfront to assure they would get their money,
knowing full well that the case would never see the light
of day - unless they could hire some "expert" who would testify
that negligence occurred despite the evidence to the contrary.
These would represent truly the "frivolous" cases. But, how
many of these are there? There are no studies and no evidence
to support the claim that they are significant in number to
impact the cost of malpractice insurance.
Is reform needed in this area? Yes. However, that reform
must be the responsibility of the lawyers themselves. They
must review, punish, and publish the wrongdoings of their
colleagues. Legislating caps on awards would most likely reduce
this obnoxious behavior, but at the expense of many injured
persons who would be deprived of just compensation - an unacceptable
Now, let's examine Mr. Bush's second contention: jury awards
as a primary cause of higher malpractice insurance costs.
There is no question that juries have awarded substantial
monies to injured plaintiffs. The question should be: were
those awards justified? If the trier of fact determines that
they were, then our legal system is working as written. By
limiting the awards, Mr. Bush and the Republicans hope to
reduce the total outlay by the insurance companies to deserving
patients across the board, regardless of whether or not such
payments were justified. There is no attempt to make the awards
fairer, just smaller. This too is unacceptable.
The fact that malpractice (negligence) occurs is undisputable.
Recent studies have estimated that from 44,000 to 98,000 Americans
are killed each year from medical errors and that almost one
million more are injured. How many of these resulted from
negligence? We'll never know, as most patients suffering from
malpractice injuries never pursue a claim, although, various
studies have placed that figure from 88 to 90 percent. To
make it more difficult to sue for malpractice, as proposed
by the Bush administration, is reprehensible.
How can the Bush cartel hope to accomplish such a feat at
the expense of the public?
Using the nation's doctors, who are ostensibly protesting
the outrageous cost of malpractice insurance, as a springboard,
the Republicans are pushing strict limits on jury awards -
awards they falsely maintain are responsible for the skyrocketing
premiums. To reduce these premiums, they vigorously support
tort reform that includes a $250,000 cap on pain and suffering,
limiting the amount of attorney fees, shrinking the size of
jury awards, and making it more difficult for injured and
sick patients to sue. Trial lawyers, they claim, are the root
cause of the problem - they take advantage of clients at the
expense of doctors and the nation for personal gain. They
assert that if their reform isn't accomplished, the nation
will suffer because doctors will be forced out of practice
by such high premiums. One can easily see the Rovian spin
- by enacting this reform; the cost of malpractice premiums
will decline and the doctors will return to work happy campers.
Although the latter is most certainly true, the former is
Medical malpractice premiums are the most cyclical of all
health care policies. When insurance companies are doing well
financially, premiums are relatively stable, whereas, when
times are rough and profits decline, premiums skyrocket. The
size of jury awards and the filing of frivolous lawsuits have
little to do with the cost of malpractice insurance.
Why, then are malpractice premiums increasing at such an
alarming rate? The reasons are simple: poor investment performance
on behalf of the insurance companies; faulty insurer's business
practices; inadequate reserves allocated for prospective malpractice
awards; large insurers opting out of the malpractice arena;
and an unconscionable lack of appropriate action by the American
Medical Association (AMA) and individual state boards of medicine.
The culprits are not the trial lawyers, but the corporate
backers of Mr. Bush's crusade against the sick and injured
- the insurance companies and the doctor's organizations.
Doctors are using the issue of high insurance premiums to
abandon their patients, threaten work stoppages, and closure
of necessary medical facilities to frighten the public into
supporting the faux reform of the Bush regime. Such reprehensible
actions have already occurred in Pennsylvania, West Virginia,
Mississippi, Nevada, and Florida. These doctors care more
about money than they do their patients. Rather than demand
adequate medical reforms to reduce errors and to discipline
those doctors guilty of negligence, they abrogate their responsibilities
to the public and violate the very oath they took to become
doctors. The Republicans declare they are rescuing the nation's
doctors from the horror of large jury awards when they know
the doctors are one of the primary causes.
Admittedly, the system is in need of reform, but not at the
exclusive expense of those who need it most - the public.
Reform, to be effective and equitable, must include a variety
of changes encompassing both the insurance industry and the
Democrats, moderate Republicans, and Independents in the
legislature should come together and push for reforms, not
by following the Bush rhetoric, but by calling for effective
changes. Realizing that the malpractice crisis is another
Bush contrived crisis, legislation should be passed to ensure
the public has adequate protection against egregious errors.
This legislation should include the following provisions:
• Restrictions on the number of hours worked by health
care professionals since fatigue is a documented cause of
errors. Truckers are restricted to the number of hours they
drive, but medical interns and residents can work over 100
hours per week.
• Hospitals and other health care providers must institute
meaningful risk prevention programs and report all errors
to a central databank. This databank could be the National
Practitioner Data Bank (NPDB) operated by the department of
Health and Human Services provided it eliminates its secrecy
and makes the data available to all. The AMA successfully
lobbied to prevent patients and doctors from accessing the
names of those who have had malpractice payouts levied against
them. This information must be made public if errors and costs
are to be reduced. Patients will have the information to avoid
selecting bad doctors and other doctors will have it to avoid
referring patients to those who are guilty of malpractice.
• Computerize records, especially those concerning
doctor's orders and medications, to track and reduce human
• Require state medical boards to establish and maintain
effective peer review committees to investigate all complaints
and discipline doctors as needed. Data from the NPDB reveals
that 5.1 percent of doctors in the United States account for
54.2 percent of the number of malpractice payouts - physicians
that have accumulated two or more malpractice payouts. It
also points out that only 7.6 percent of those doctors with
two or more payouts have been disciplined. Of those with five
or more payouts, only13.3 percent have been disciplined and
of those with 10 or more payouts, only 32.1 percent have received
any disciplinary action. This is outrageous. Most of these
doctors are still practicing on an unsuspecting public.
• Require that doctors obtain mandatory continuous
education in their fields of practice and that they be recertified
periodically based on independent written, clinical, and oral
• Demand that insurers rate doctors on performance
when establishing malpractice premiums, charging more for
those disciplined and decertifying those with numerous malpractice
• Direct insurers to create larger risk pools by reducing
the number of classifications of specialties; thereby, spreading
the risk over a larger number of participants.
Sadly, most all of these recommendations are opposed vigorously
by organized medicine, making them the primary obstacle to
effective reform. Therefore, the medical establishment is,
itself, responsible for the malpractice crisis - it has refused
to accept responsibility to reduce medical errors and resorts
to lying to the public. Such is the arrogance of the medical
profession - it's easy to see why it fits so nicely with the