TCS Daily

Dangerous Lies

By Sydney Smith - January 21, 2003 12:00 AM

Much has happened since I last wrote about the malpractice insurance crisis. Four states - Ohio, Mississippi, Pennsylvania, and Nevada- have taken steps toward serious tort reform, although three of them only did so after it became obvious that the crisis was affecting access to care. West Virginia has addressed reform, too, after surgeons in the northern panhandle of the state stopped working. On the federal level, the House passed tort reform legislation, only to have it die in the Senate. And last week, President Bush announced his support for medical malpractice reform while chastising the Senate for failing to act. Now, with the opening of a new Congress of a different political bent, tort reform will surely be on the national agenda again - and its opponents are gearing up to stop it by turning the case for reform on its head. It's not the legal system that needs reformed, they say. It's the healthcare system.

First, the New York Times ran an op-ed by plastic surgeon Lloyd M. Krieger that argued that medical errors were at the root of the malpractice crisis, not the tort system. A few days later, consumer groups took up the cry. Joan Claybrook, president of Public Citizen, opined, "Doctors are falsely demonizing America's legal system rather than saving tens of thousands of lives and litigation costs by preventing careless or unnecessary medical errors... The medical lobby should stop lying and look in the mirror rather than team up with the big insurance companies to deny injured patients the right to challenge malpractice doctors." She went on to claim that the medical profession was "targeting the low-income, largely rural states like Nevada, Mississippi and West Virginia, which are always medically underserved. These states with fewer doctors provide the medical lobby with huge leverage, guaranteeing maximum national media exposure." (She must think the AMA operates like Public Citizen.)

Adding insult to injury, one of the authors of the very badly done Institute of Medicine report on medical errors, Arthur Levin, claimed that, "The American Medical Association's depiction of the crisis - one focused on malpractice insurance premiums - conveniently serves to distract everyone from the reality that it is organized medicine that continues to vigorously oppose a series of Institute of Medicine recommendations aimed at reducing the number of medical errors. By working to obstruct these recommendations, organized medicine is saying it is acceptable for patients to continue to suffer preventable harm."

These people are so off base, it's hard to take them seriously. Yet, take them seriously we must if we are to prevent the crisis of access like that being played out in West Virginia and elsewhere from becoming a nationwide phenomena. You would think from their comments that the AMA has orchestrated the crisis - from the closing of the Las Vegas trauma centers to the walkout in West Virginia - to divert attention from medical errors. Nothing could be further from the truth. Doctors are notoriously opinionated and independent. Managing us has been likened to herding cats. The AMA has never been able to organize their diverse membership into a unified coalition. That's why it has never been able to function like a union. Its role in this crisis has been limited to lobbying lawmakers, publicizing the issue, and urging members to join letter-writing campaigns. It hasn't been organizing strikes across the nation. When doctors stop working, it's because they can't pay their bills. No one's going to stay in business if they can't cover their overhead.

But the most serious accusation is also the most false, and the most dangerous. That is, that medical errors are at the root of the malpractice crisis. By this logic, one would have to believe that malpractice claims are increasing because doctors are harming patients in ever greater numbers. But this isn't true. Ms. Clayborn's own press release notes that "new medical malpractice claims declined by about four percent between 1995 and 2000." What has been increasing since 1995, however, is the amount that juries award for each claim. From 1995 to 2000, the median malpractice award for punitive damages increased from $500,000 to $1 million. That all adds up, but it's the jackpot jury awards of over a million dollars that are really straining the system. From 1994-96, 34 percent of malpractice awards were over $1 million. That number jumped to 52 percent from 1999-2000.

Are doctors performing so badly that juries are awarding more money to compensate the horrendously injured? No. According to the very studies that the Institute of Medicine misused, injury due to medical care has been decreasing - from a rate of 4.6 percent in 1976 California, to 3.7 percent in 1984 New York, to 2.9 percent in 1992 Colorado and Utah. To be sure, it isn't statistically valid to compare different regions like that, but it is precisely such misuse of statistics that allowed the Institute of Medicine to overstate physician error nationwide. And they did so while ignoring the decreasing rates of injury over the years. The truth is, we don't have any reliable nationwide data on how many people die or are injured by medical errors, nor do we know how many of the malpractice cases in our court system are the result of those errors. If jury verdicts are any indication, few of the claims are due to mistakes, since 70% of them end in favor of the defendant.

So, how should we solve the crisis? Should we concentrate on reforming the medical profession and require doctors and hospitals to invest in expensive computer systems and to pay expensive consultants to get their error rates as close to zero as humanly possible? Or should we concentrate on reforming the legal profession and rein in lawyers who manipulate the system for huge cash awards, most of which they pocket for themselves? Do the former while ignoring the latter, and the cost of practicing medicine will only increase further, driving more doctors out of business. Then, medical error rates will be the least of our problems. After all, we can't be harmed by our doctors if there are none left to treat us.

The author is a family physician who has been in private practice since 1991. She is board certified by the American Board of Family Practice, and is a Fellow of the American Academy of Family Practice. She is the publisher of MedPundit.

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