Medical Malpractice
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 premiums.

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 accomplished?

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 malpractice policies.

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 provision.

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 pure baloney.

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 medical profession.

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 errors.

• 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 examinations.

• Demand that insurers rate doctors on performance when establishing malpractice premiums, charging more for those disciplined and decertifying those with numerous malpractice payouts.

• 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 Bush cabal.