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The Big Lie: Physicians, Lawsuits and Medical
Malpractice.
When Politicians, Physicians and Insurance Company Executives Conspire
to Attack the Legal System, The Ordinary Consumer is the Real Victim.
Introduction.
In early February, 2003, New Jersey physicians did the unthinkable.
They went on strike.
Disregarding their obligations to provide critical care to patients
in the Garden State, these doctors felt that it was more important
to safeguard their profits than the health of their own patients.
The reason for this medical walkout? New Jersey physicians are upset
about the high cost of medical malpractice insurance premiums.
To keep the costs of medical malpractice down, doctors and insurance
companies have proposed to limit the amount of monetary damages
in medical malpractice lawsuits to $250,000. The physicians and
insurance companies reason that excessive jury verdicts are responsible
for the steep rise in malpractice costs. By limiting the amount
of damages that an insurance company must pay in these lawsuits,
insurance companies will be able to lower premium charges to physicians.
This is not the first time that insurance companies have blamed
the legal profession for their economic problems. Back in the early
90's, when insurance company investments were declining and their
profits were tumbling, the insurance industry coined the phrase
"the lawsuit crisis", and tried to blame the legal system
for all the financial woes. Faced with investment losses, insurance
companies raised premiums and blamed lawyers. Even President George
H. W. Bush was on the side of the insurance industry. In one of
his televised speeches, Bush lambasted the "tasseled loafer
trial lawyers" as the cause of the nation's insurance problems.
This tradition continues today, with President George W. Bush, who
seems to have borrowed a few pages from his father's Insurance Industry
Playbook. Once again, we are faced with strangely similar circumstances
as in the early 90's: We have a Bush in the White House, we are
at war in Iraq, the economy has taken a serious downturn and investors,
especially institutional investors, are facing financial hardships.
Analysis - critical questions
Are medical malpractice premiums out of control, causing hardships
for physicians? Are medical malpractice premiums increasing because
of large jury verdicts? Would caps on jury awards cause insurance
premiums to go down, making it easier for physicians to serve the
public? Would limits on jury awards serve those who are injured
by physician malpractice? Would limits on jury awards serve the
public in general?
Let's look at each question in turn.
(1) Are medical malpractice premiums out of control, causing
hardships for physicians?
No. Far from being out of control, medical malpractice premiums
for physicians have actually declined, as a percentage of revenue.
From 1986 to 1998 premium costs declined for physicians. In 1986
physicians paid an average of 10.8 percent of their gross revenue
for malpractice insurance. This number steadily declined over a
ten year period, so that by 1998, doctors were only paying 6.4 percent
of their gross revenue for the same insurance. In the meantime,
the average annual net income for a physician has increased during
that period from $119,500 to $194,400. Looking at these costs in
real dollars, a doctor making a net income $119,500 in 1986 paid
about the same amount for malpractice insurance as a doctor netting
$194,400 in 1998.
Source
of the data for the above chart, American Medical Association, Socioeconomic
Characteristics of Medical Practice, 2000
(2) Are medical malpractice premiums increasing because of large
jury verdicts?
No. Insurance companies have been arguing for more than ten years
that excessive jury awards are the cause of rising medical malpractice
premiums. Yet during the twelve year period from 1986 to 1998, when
many of these so-called excessive jury awards were granted, medical
malpractice costs remained steady in real dollars, and actually
declined as an overall percentage of physician revenue. If, as the
insurance companies claim, large damage awards were the cause of
higher malpractice premiums, then malpractice costs should have
increased during this time. Instead, they remained about the same.
It should also be noted that medical malpractice jury verdicts themselves
would be infrequent, if insurance companies acted ethically and
paid claims in accordance with their contractual obligations. Instead,
many insurance firms routinely deny claims without justification,
in the knowledge that most claimants will not pursue the matter
in court. It is unfortunate that the very same jury awards that
insurance companies cite as the cause of higher premiums, are the
result of litigation that would not have occurred, but for insurance
company greed.
(3) Would caps on jury awards cause insurance premiums to go
down, making it easier for physicians to serve the public?
No. In other countries that do not have a jury system like ours,
doctors also complain about medical malpractice rates . Obstetricians
in France - which has strict limits on malpractice lawsuits and
no juries - recently threatened to walk off the job because of soaring
malpractice premiums. There is no evidence that caps on jury awards
would result in cost savings to insurance companies, and even less
evidence that the insurance companies would pass any savings on
to their policy holders.
(4) Would limits on jury awards serve those who are injured by
physician malpractice?
No. The current proposals to limit jury awards seek to cap non-economic
damages, such as awards for pain, suffering and emotional distress,
to a limit of $250,000. Does this amount adequately compensate for
the kind of human suffering which is caused by medical malpractice?
To answer that question, let's look at some actual victims of medical
malpractice. You decide if $250,000 is enough to compensate these
victims.
Linda McDougal, Wisconsin
Linda
McDougal had both of her breasts surgically removed after her
doctor mistakenly told her she had an aggressive cancer. McDougal
went in for a mammogram and when a dark spot was detected, her doctor
suggested a biopsy.
A hospital pathologist switched McDougal's test results with those
of
an actual cancer patient. That mix-up led to her double mastectomy
just three weeks later. 48 hours after the surgery, Linda was informed
by the hospital that a terrible mistake had been made.
Now,
several months later, Linda is finally able to speak about what
happened to her. She still suffers from residual infections. The
pathologist who caused this horrific injury will not be reprimanded
unless another incident recurs.
McDougal has expressed disappointment with President Bush's plan
to
impose a one-size-fits-all limit on the amount of compensation victims
of malpractice can receive for life-altering injuries, like her
unnecessary mutilation.
For
additional articles about Linda see Northwestern
Law News, CNN,
CBS
News
Cyndi Enzenaur, El Sobrante, California
Cyndi's
husband died Dec. 27, 2000, after doctors failed to diagnose
pneumonia, which led to a blood infection and septic shock.
The hospital, which was understaffed in order to cut costs, performed
a blood culture, but the results of that test were never placed
in his
chart. They were lost and recovered only after his death.
When
her husband died, Cyndi's daughter was 6. Cyndi, who is a
Republican, says of medical malpractice, "It's not about politics.
It's about an 8-year-old who says every night, 'I miss my daddy.'"
Ed
Whiddon, Georgia
Ed
Whiddon - a former pilot for Eastern Airlines and a Lt. Colonel
in
the Air Force - was the victim of malpractice at the hands of an
anesthesiologist who left him a paraplegic. Ed underwent a routine
operation to repair a hernia. The anesthesiologist allowed Ed's
blood
pressure to drop too low during the 1 ½ - 2 hour operation,
and not
enough oxygenated blood circulated to his lower spinal cord.
When
Ed awoke from the operation he no longer had the use of his legs.
The doctor's insurance company offered only $125,000 and laughed
in Ed's face at the idea of Ed taking his case to court to be heard
by a jury. Ed's verdict is almost entirely non-economic damages...exactly
the kind of damages President Bush says needs to be limited, in
every case, to $250,000.
Jennifer
Tinsman and son Kody Garhart, Colorado
When
Jennifer Tinsman went into labor, monitors showed that her baby,
Kody, was in trouble, but nurses did not call a doctor. When the
doctor finally arrived and proceeded with a vaginal delivery --
not cesarean -- oxygen to the baby's brain was cut off for at least
20 minutes.
Kody survived, but now has severe cerebral palsy. He is fed through
a
tube. He cannot walk. Jennifer suffered internal injuries during
labor and can no longer bear children. A jury found several defendants
liable for malpractice. Kody's medical bills alone will cost several
million
dollars. But the defendants moved to have the jury verdict reduced
to the amount of Colorado's medical malpractice cap. Who will pay
for the rest of the baby's medical bills?
An unnecessary double mastectomy. The needless death of a husband
and father. The loss of the ability to walk. Severe cerebral palsy.
The loss of ability to bear children.
These consequences clearly represent damages far beyond the proposed
malpractice caps. At this point in our analysis, it is fair to say
that caps on damage awards do not adequately serve those who are
injured by physician malpractice.
(5) Would limits on jury awards serve the public in general?
No.
A one-size-fits-all federal mandate that limits medical malpractice
cases won't make patients safer, guarantee they'll have a doctor
when they need one, or bring down insurance rates for patients or
doctors.
Our top priority in reforming America's health-care system should
be
reducing the shameful number of preventable medical errors that
kill
nearly 100,000 hospital patients a year - the equivalent of three
fatal plane crashes every two days. The New England Journal of Medicine
recently reported that surgical teams leave clamps, sponges and
other tools inside about 1,500 patients nationwide each year.
Conclusion.
Once upon a time, we did not have laws to protect consumers. Drivers
who were killed in defective automobiles had no legal standing to
sue the automobile manufacturer. Physicians who injured or killed
patients through lack of care did not have to answer to any laws.
Since those dark times, our laws have evolved to the point where
they now protect consumers, so they have remedies available to them
if an auto manufacturer produces a defective vehicle or if a physician
breaches his or her duty of care to a patient.
Caps on medical malpractice cases represent a giant step backward
in the evolution of the law. Caps would protect and shield those
physicians who seriously injure their patients, but would do nothing
to safeguard the lives and health of patients. Caps would also tend
to reduce patient injuries to a simple cost of doing business. Human
life and suffering should never be dismissed so lightly. Caps would
also remove the incentive for the medical profession to do a better
job. Quite frankly, sometimes a stiff lawsuit is needed to force
a physician practice or hospital to re-evaluate how it provides
care, so that it can do it better in the future.
The concepts sounds so simple when George W. Bush glibly calls for
caps on medical malpractice cases, so that "frivolous cases"
don't force doctors and insurance companies to pay large damage
awards. But, as we have seen here, there is much more to this issue
than meets the eye.
In closing, it is worth noting that, from the defendant's point
of view, every case is "frivolous".
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