One of the consequences of tort law is that courts can find a physician liable for a host of things. The problem with the justice system in the United States is that despite a doctor's ethical actions based on science or the best of diagnostic procedures determined by a panel of doctors, a physician can be held liable for what the court deems an error. A jury can view something as a medical error even if the professional medical community does not. There are no caps on malpractice lawsuits. This creates an atmosphere of what is referred to as "defensive medicine."
Legal Concerns Prompt Cover Your Derriere
Though hard to put a figure on, the generally accepted estimate of the annual cost for ordering lab tests, images, or prescription medicine that is not necessary, but in an attempt to avoid a lawsuit, is somewhere between 100 and 200 billion dollars annually. An extension of defensive medicine is the practice of limiting high risk patients and high risk procedures.
An example of the desire to protect oneself from the remote possibility of lawsuit is requirements for accepting lab tests at different medical facilities. A person can have more than month old imaging results involving bone and be required to have all the same lab procedures done again before treating. In many cases, defensive medicine policies preclude the possibility of the patient waiving the right to sue. In case after case, this re-imaging or lab testing is not medically necessary. This creates a huge expense to the health care system.
Doctors, dentists, and nurses commonly take out malpractice insurance to pay for lawsuits. The trend has extended to hairdressers, accountants, vets, sports umpires, members of the clergy, all fearful of being sued wrongful action or advice.
— Gavin Esler
Congress and Our Health Care Crisis
When Congress discusses the health care crisis, defensive medicine is a topic avoided. Defensive medicine is something that doctors have to deal with daily. Those of you who have required many diagnostic tests in or out of a hospital know that duplicating lab tests can easily run thousands of dollars! In addition, we have become used to seeing outrageous bills for medical service, not remotely like any other service we seek. Require a listing of all procedures and their cost - I have caught many errors where lab tests not performed were charged. We must be vigilant to do our part in lowering health care costs. In addition, look for charges for things that simply could not have been provided.
Medicine Has Become Much More Than a Serious Profession
Legal Share of Medical Expenses
Studies have shown that 60% of the expense of medical treatment comes from lawyers' fees, administration (paper work to avoid malpractice lawsuits), and insurance. Even considering the lowest figures related to percentage of cost of health care from lawyers and administrative costs at 1-2%, we are talking about 20 billion dollars. "A billion here, a billion there and before you know it you're talking some real money!" said Everett Dirksen, former senator from Illinois.
Tort is a system compensating wrongs and harm done by one party to another's person, property, or other protected interests". Accusations of medical wrongs are evaluated by judge and jury. One suggestion has been to have "health courts" or "medical courts". With malpractice suits, this special court would be made up of judges who are trained in medicine. It is believed that these health courts would lower settlements due to the fact that they would rule on cases based on accepted medical practice and ethics, and be less influenced by emotion than juries of citizens.
The inspiration for this kind of court comes from many aspects of litigation!! One aspect that many people are familiar with is the practice of lawyers getting 30% of the take in malpractice suits. By setting such a standard, there is an incentive for the lawyer to fight for every "conceivable" (trivial) point that could possibly lend itself to a bigger pay out. By deduction that means the introduction of as many reasons as possible physicians or hospitals committed error. These discoveries can be trivial and result in lengthy court trials costing the taxpayer and medical community millions of dollars and this figures in when determining health care insurance premiums. Other countries, most notably the European Union consider this practice un-ethical.
Many experts feel that requiring the loser of a trial to pay defendant and plaintiff expenses (also known as the English Rule) would discourage a large number of trivial malpractice cases, which in turn would lower physician's insurance rates, which in turn should lower fees. The United States has no caps on medical lawsuit damages. In Texas, where in 2003 medical caps were placed on medical malpractice insurance, premiums decreased 23%. These experiments have shown the same results in other states who have ruled to institute malpractice caps. I believe that such state experiments would prove the efficacy of "health courts," also.
We Need a McCain Moment
In my opinion, the last serious debate about tort reform was in 2005. At that time Senator John McCain came out forcefully for a number of facets of tort reform. The following summarizes his position.
- Sponsored the Class Action Fairness Act of 2005 which sought to curb lawsuits by shifting suits from state to federal courts, by requiring judges to review all coupon settlements, and by limiting attorneys' fees in non-cash settlements
- Voted for a bill that would bar lawsuits against manufacturers, distributors, dealers and importers of firearms
- Voted for a bill that would place caps on damage awards in medical malpractice suits against obstetricians and gynecologists
- Voted for a motion to proceed to a bill that would cap non-economic and punitive damages in medical malpractice suits
Congress then as now did not act. In this writer's opinion, the problem has only grown worse.
Americans spend 2.5 trillion dollars annually on health care. Clearly, eliminating many of the abusive legal situations the medical field encounters will not solve our problem with health related bills. But taken as a significant piece of the puzzle along with: the importation of foreign pharmaceuticals, incentives for foreign doctors who can pass our medical boards, a health corps made up of volunteers similar to military medical service, increasing the number of medical students admitted to medical schools, ending free medical care for illegal aliens, perhaps an elimination of the AMA suggested fee schedule, a more vibrant questioning of common practices in charging, and a host of other things, we could easily increase the chances of 46 million un-insured American citizens to afford health insurance. The problem has become solely a political one. Both political parties have elbow benders influencing their decisions.
Accepted estimates of defensive medicine costs is 46 billion dollars. Three percent of that is claimed by most academics to be all that would be saved if it could be eliminated. Three percent is $1,380,000,000! It is my opinion that structural changes would lead to even bigger savings. Note that despite increased licensing requirements at all levels (which increases cost) have not changed the amount of malfeasance that occurs in the system. In 2016, it was estimated that medical errors were the third highest cause of death in the United States.
Oh, did I mention that the top donors to the Democratic Party are trial lawyers? In 2020, overall, lawyers sent Democrats 95% of their political donations, and the American Association for Justice — the top trial lawyer lobby — directed over 97% of its contributions to Democrats.
Tortsprof. February 16, 2008. McCain's Position on Tort Reform. Retrieved from https://lawprofessors.typepad.com/tortsprof/2008/02/mccains-positio.html .
Eightenn references, staff. Tort reform. Updated January 26, 2021. https://en.wikipedia.org/wiki/Tort_reform
Sam Batkins and Jacqueline Varas. October 17, 2016. Tort Reforms Impact on Health Care Costs. Retrieved from https://www.americanactionforum.org/research/tort-reforms-impact-health-care-costs/
Brian Lubin, MD, MPH (January 23, 2016). The Hospitalist retrieved from https://www.the-hospitalist.org/hospitalist/article/156038/antimicrobial-resistance
Daniel P Kessler (2011).Evaluation the Medical Malpractice System and Options for Reform. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3195420/
Marc Thiessen. December 21, 2020. Dems bow to the trial lawyer lobby. Retrieved from https://www.morningjournalnews.com/uncategorized/2020/12/dems-bow-to-the-trial-lawyer-lobby/
Malpractice Insurance - A Video
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.
© 2011 John R Wilsdon