Malpractice by lawyers
1/31/2003 12:00:00 AM - Mona Charen
They did it in West Virginia, and now they're going to do it in
New Jersey. Doctors are staging strikes. They will of course continue to
care for emergencies, but office visits and non-emergency surgeries will
have to wait. No one is quite sure for how long. It may be a day or two, or
possibly a week. But doctors have been driven to this attention-getting
extreme by an out-of-control malpractice system. To quote the old movie
"Network," they're "mad as hell and they're not going to take it anymore."
The doctors are outraged because the malpractice lottery has
made the practice of medicine a combat zone. It is making a few lawyers very
rich but driving up costs, causing good doctors to abandon medicine, and
souring the relationships between physicians and patients.
The situation is particularly acute for obstetricians, whose
malpractice insurance premiums have jumped by as much as 150 percent in four
years. About one in 11 obstetricians has scaled back his or her practice to
gynecology only to avoid these enormous costs.
In places like Las Vegas, it's getting difficult for pregnant
women to find doctors willing to deliver babies, as malpractice premiums
have jumped from $37,000 to $150,000 annually. Obstetricians are paying a
heavy price because most malpractice suits in America are not about bad
medicine, they are about bad outcomes. In obstetrics, more than in other
fields, a certain number of disabled children and bereft parents is
unavoidable. But trial lawyers seize upon every tragedy as an opportunity to
While the total number of medical malpractice suits has held
steady over the past decade, the size of recoveries has not. The average
jury award rose to $3.39 million in 1999 -- a 79 percent rise since 1993.
The trial lawyers argue that malpractice suits improve medicine
by going after the few bad apples in the medical profession and holding them
accountable. But as the Harvard Medical School study of 30,000 New York City
cases demonstrated, more than 80 percent of the lawsuits filed were without
merit -- i.e., no malpractice was found.
As Peter Huber, a tort reform advocate has pointed out, about 20
percent of the suits did not even involve an adverse event -- yet these
tended to be settled for an average cost of $29,000. (Fifty-seven percent of
medical malpractice premiums pay for lawyers' fees.) The presence or absence
of actual malpractice had nothing to do with the likely outcome of the case.
Insurance companies settle with plaintiffs all the time in order to avoid
the expense of litigation.
One factor that did correlate well with likely outcomes was the
socio-economic status of the plaintiff. Wealthier plaintiffs were more
likely to file malpractice claims and more likely to recover damages.
Another good predictor of outcome was the severity of disability (whether
caused by negligence or not). The more disabled a plaintiff was, the more
likely a sympathetic jury would award large damages.
Not only are doctors passing along their higher costs to
patients in the form of higher fees, they are also increasing overall
medical spending by practicing defensive medicine -- ordering tests by the
bucketful and referring patients to specialists to cover themselves in the
event of a lawsuit.
What is particularly galling to many doctors is the fact that
merely being named in a malpractice suit is enough to raise your premiums --
even if the suit turns out to be dismissed as without merit and even if the
doctor in question had nothing to do with the alleged malpractice. If an
orthopedist saw a patient for a sprained wrist, and that patient later sued
his partner for a poor surgical outcome on his knee, the first doctor is
named in the suit anyway.
What the striking doctors are asking for is a rule of reason.
California has capped recoveries for pain and suffering at a quarter million
dollars and has limited attorneys' contingency fees. There is no limit to
recoveries for lost wages, lost future earnings or medical expenses,
including rehabilitation for plaintiffs. If such a system were adopted
nationwide, critics of the current system argue, it could save the country
more than $50 billion a year.
That's reason enough for reform. But an equally pressing reason
is that curbing the lottery would be a victory for sobriety. Misfortune is a
part of life, and Americans once faced it with fortitude, not lawsuits.