TCS Daily

Mending Malpractice Mania

By Bruce Fein - February 13, 2003 12:00 AM

Medical malpractice insurance premiums are out of joint.

Some doctors are fleeing high premium states for more physician friendly jurisdictions. In certain specialties in certain states, premiums have climbed above $250,000 annually. Other beleaguered health care providers have temporarily suspended non-emergency care to spur malpractice tort reform in state legislatures. Although the problem can be readily identified, finding a solution is more problematic.

Patient suffering or death characteristically summons tears, bereavement, and a search for a villain. The presiding physician who brings the bad news stirs anger like the messenger informing Cleopatra of Marc Antony's infidelity. Thus, medical malpractice lawsuits are born: some legitimate, others frivolous, and all frighteningly expensive to litigate.

President George W. Bush illuminated the worrisome consequences of multi-million dollar lawsuits that empower lay jurors to second-guess medical judgments for both doctors and consumers in an August 2002 address in Madison, Miss.:

"[T]he lawsuit industry is devastating the practice of medicine. ... You've got too many of your doctors that are being forced to settle cases for large sums of money even when they haven't committed an error. ... It hurts the people [because the cost of medical care jumps]. ... These are good docs who can't get liability insurance or given up their specialties and their practices to go somewhere else. ... I want to tell you about [pediatrician] Dr. Kooyer ... of Rolling Fork, Mississippi. ... [B]ecause of frivolous lawsuits ... and because of his rising liability insurance premiums, he's leaving your state. He doesn't want to leave your state, ... he loves helping those who need help. He loves being a pediatrician, ... but he's had it.

"And so he's leaving, which means there will be no pediatrician in that county in Mississippi."

The chronic malfunctioning of medical malpractice suits has been comprehensively diagnosed. Breathtaking medical advances incline laymen to attribute physician error to any treatment that fails. If hearts and kidneys can be successfully transplanted, it is simple-mindedly thought, then medicine can cure any lesser ailment. Lay jurors are thus predisposed to assign doctor negligence as the proximate cause of any unintended harms to patients. Furthermore, in non-routine medical cases, professional differences will emerge over the preferred treatment, just as eminent lawyers will diverge in recommending legal theories and trial tactics in complex litigation. Thus, patient plaintiffs seldom encounter difficulty in discovering richly compensated medical experts to disparage defendant doctors who allegedly caused injuries or worse.

Human nature also makes jurors plaintiff friendly. The unfeigned tear-stained testimony of pain-riddled, withered, and impaired patients and their families move hearts like the death of Little Nell in The Old Curiosity Shop. Defendant doctors, in comparison, seem aloof and distant. Their social prominence, envied financial standing, and the knowledge that malpractice insurers will pay most of the bill militate against juror sympathy. Thus, liability for medical negligence will be found except in blatantly contrived cases.

Skirmishing over damages is equally skewed. Under customary tort law, injured patients may recover for "pain and suffering," a concept without meaningful limits. No marketplace exchanges for physical and emotional trauma constrain the jury. Our culture preaches that unimpaired health is priceless, the jewel in the crown of life. Mere contemplation of attaching a price sticker to an ailment or handicap seems cruel and callous. Accordingly, jurors regularly return lavish pain and suffering awards to memorialize their own humanity and compassion.

Birth and Evolution of a Problem

Punitive damages in medical malpractice lawsuits compound the profession's perils. They are a mischievous relic of ancient common law that persist from a blind imitation of the past.

At birth, punitive damages were aimed to shore up the skimpy law enforcement resources of the state in both Great Britain and its American colonies. They offered an alluring incentive for private citizens to act as surrogate attorneys general by suing allegedly malicious wrongdoers for crippling sums that would punish, frighten, and deter. That law enforcement justification still obtained when the United States Constitution was born in 1787. For instance, the job of the first attorney general, Edmund Randolph, was part-time.

But modern state law enforcement arsenals are as different from yesteryear as intercontinental ballistic missiles are to muskets. Egregious medical misconduct can be answered by criminal prosecutions or revocations of licenses to practice by disciplinary boards. Punitive damages have thus lost their reason in medical malpractice suits and deserve a long overdue obituary.

President Bush proposed a $250,000 nationwide ceiling on pain and suffering awards to clip insurance premiums and staunch the hemorrhaging of doctors from high-risk specialty practices. And Congress is holding hearings on medical liability. But discovering the most enlightened balance between compensating injured patients, deterring irresponsible care, and arresting the cost of medical treatment is an art, not a science.

Experimentation in 50 state laboratories is urgent to gather empirical data. If the nature and severity of the medical malpractice problem varies from locality to locality, then so should the answers. Moreover, states are more alert to correct medical malpractice infirmities because inertness will precipitate physician flight to warmer professional climates in sister jurisdictions. In other words, our system of federalism fosters competition in good government when an issue is left undisturbed with the states. The federal government should thus silence its monopolistic voice. It squelches experimentation where, as with medical malpractice, states are actively considering and enacting varied reforms in searching for the superior solution.

Bruce Fein is a contributing editor to Tech Central Station.

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