Home > Insight

Making medicine malpractice
By Emile Hallez
ehallez@mscd.edu

In 2008, you will need an operation to remove a shattered porcelain unicorn from your transverse colon. The dissecting surgeon will accidentally staple your tongue to the bottom of your left foot. An awkward three days will ensue, in which you hop on one foot between the couch and the toilet before the staples are removed. You’ll have lost time at work. Your medical bills will have skyrocketed. Your only recourse is to file suit with the negligent surgeon, which will be all but impossible.

A blurb President Bush muttered during the State of the Union address concerned medical liability, a type of reform for which he has incessantly pushed while in office. While reform has a lustrous veneer, the underlying beast is quite unkempt.

His plans include capping punitive damages, making the average award much smaller than it currently is. The idea is to prevent gold-digging patients from reaping benefits from overly obliging juries.

“A future of hope and opportunity requires that all our citizens have affordable and available health care … And to protect good doctors from junk lawsuits, we passing (sic) medical liability reform,” Bush said Jan. 23.

“Junk lawsuit” is sophomoric dysphemism for a range of grievances, many of which actually have merit. It may be tempting to think capping damages will lower the cost of healthcare, but it would ultimately lower the quality of treatment as well. Perhaps this is why the Senate voted last year against a bill to cap punitive damages in medical lawsuits at $250,000.

“The problems it will create might well be worse than the problems it’s supposed to solve,” said Metro political science professor Norman Provizer.

Trials are not cheap; attorneys charge their own fees in addition to those of expert witnesses, who are often the culprits in the high cost of cases. Plaintiffs thus receive a fraction of awards and settlements. When these awards are high, the public becomes outraged, reasoning that no one deserves such incredible sums.

“The system is so expensive to participate in … that’s why people who don’t have money go to the contingency case. That’s why you’re willing to pay a third of what you’re going to get to someone … you won’t have the money to do it otherwise,” Provizer said. “In fact, that system does work, up to a point.”

Punitive damages function as a penalty for offenders, a way to deter them from future negligence. Capping these awards would allow careless doctors a way off the proverbial hook. Not only would lawsuits be cheaper for defendants and insurance companies, but plaintiffs and their lawyers consequently couldn’t afford to file them.

“If the impact is fewer people able to use the courts to correct wrongs, or gain recompense for wrongs they’ve suffered, I’m not sure that’s a particularly good idea,” Provizer said.

The perceived litigation crisis in America doesn’t really exist. Our civil lawsuit system already has ways of preventing truly frivolous cases from ever making their way to trial.

“You often rely on the filtering process, the system to keep them from occurring. So there are some safeguards,” Provizer said.

“By some estimates, jury trials have declined to less than 2 percent of all cases filed,” wrote reporter Leigh Jones in an article for The National Law Journal.

The increased cost of malpractice insurance comes from out-of-court settlements. Doctors would rather settle frivolous cases than have the grim shadow of a trial, regardless of its outcome, on their records. Insurance companies don’t mind, they just pass the high cost of settlements onto the consumers.

“Frequently, the threat to sue is sufficient to produce a reward, not the actual suit, but the discussion of it,” Provizer said. “There are problems, but the solutions are far from obvious … The insurance industry is not a benevolent society.”

Responsibility for decreasing malpractice premiums lies with doctors and insurance companies. Doctors need to follow unmerited cases to trial, discouraging the currently lucrative practice of frivolous litigation. The insurance industry needs to stop being complacent, holding greedy patients and their lawyers accountable.