Medical Malpractice

Medical Malpractice

The issue of malpractice reform has surfaced in the health care debate. As a trial lawyer, I have a certain amount of experience with malpractice actions. Unlike my colleagues in the bar, however, I think the current system is perverse and inappropriate.

When a prospective client comes in and tells me a story of medical neglect or about a bad outcome, the first question I have is, “Do you have injuries of over $250,000?” If not, it really does not matter how egregious the malpractice was. The cost of hiring experts and litigating to the nth degree is so high that no lawyer can take a malpractice suit unless damages are over $250,000. So, we need to reform malpractice to create a viable remedy for serious injuries that do not reach the quarter of a million dollar threshold.

Further, the system has become so highly charged that there are no quick settlements of medical malpractice actions. Part of this is, of course, the fragile egos of doctors who can never apologize or admit a mistake. Part of this is the strategic decision of insurance companies to fight every case to the death to deter plaintiffs from coming forward. So, enormous churning takes place. Motion after motion is filed. Depositions go on interminably.

And, the malpractice system interferes with my ability to get prompt health care. I asked my doctor why he will not answer email or telephone questions. Part of it is that he will not get reimbursed for this time for email or telephone. But, he explained, it is not the uncompensated time that prevents him from answering. It is the fact that he is totally exposed to malpractice claims for those answers. If he were compensated for the service, he might decide that answering calls and emails would make sense. The result is clear. I had a sore back and wanted to see a physical therapist. I called my doctor’s office. I was told I had to come in so he could rule out other causes. I decided it was not worth my time and paid the PT out of pocket.

So what is the solution? There are two goals to the medical malpractice system: compensating victims of some one else’s negligence and punishing health care providers whose actions fall below the standard of care. Malpractice is not a no-fault insurance scheme. Medical procedures carry risks and a horrible outcome can result from no negligence whatsoever. In that case, the patient bears all the burden.

The current system overcompensates a few victims, undercompensates most, and provides no compensation whatsoever for the victim whose injuries do not total $250,000. So, on the one hand, we need a low-cost administrative scheme, broadly like workers’ compensation, to compensate victims of medical malpractice. This means a table of damages. Critically, the table of damages needs to provide some meaningful recovery for pain and suffering. My thought is that we establish a maximum dollar amount for a day of the most excruciating pain. We then scale that back based on the level of pain actually suffered and multiply by the number of days of that suffering. Obviously, all medical costs resultant from the malpractice would be covered on a dollar for dollar basis. The patient would be awarded the costs of future medical treatment, if amply demonstrated. The patient would also receive an award for permanent disability. Lawyers for the victims would also be paid out of the system. All costs of this system would be paid by the medical providers’ insurance.

The other goal of the system is what worries me the most. Under the current system, many incompetent medical providers skate through, fending off claims and paying their premiums. Hospitals suffer no sanction for failing to enforce infection precautions resulting in thousands of unnecessary deaths every year. And, doctors routinely make money by ordering unnecessary tests and blame the malpractice system for their own greed and dishonesty. The replacement malpractice system needs to have three features. First, medical providers who face claims and who have to pay need to have their insurance premiums accurately reflect this. The risk cannot be spread too broadly. The weak, the incompetent, the lazy must face the consequences. Perhaps some will decide that the practice of medicine is too expensive for them and transfer to a field for which they are competent. Second, the compensation system must be closely linked to the licensing boards. When a medical provider reaches a certain threshold of claims, the provider should face a hearing by the licensing board to determine whether the license should be suspended or the provider placed on probation. Third, the entire system must be wide-open transparent. Any medical consumer in the area ought to be able to type in the name of a doctor or a hospital or a radiology service and see how many claims have been brought against them and what the outcome of those claims have been.

Okay, I know this proposal will be greeted with wrath by both my fellow trial lawyers and by the medical profession. Still, I think it is worth saying that the charges against the medical malpractice system by the medical profession are, for the most part accurate. The solution they propose will not, however, correct the problem and will just serve to further enrich them.