I recently visited the portion of the American Medical Association’s web site devoted to reforming state liability laws involving medical malpractice. The AMA is an organization of doctors which advocates on their behalf. The AMA characterizes its efforts at malpractice reform as a win-win for everyone. It is good for doctors and good for patients.
The “reform” proposals advocated for by the AMA come in a number of different flavors. They want to cover all possible bases. Some proposals would limit the amount of money a patient could recover for damages resulting from medical malpractice. Some would limit what proof the patient would be allowed to offer to show that the doctor fell below acceptable standards. Some would limit the amount a patient could agree to pay a lawyer to take the patient’s case. Some would allow the defendant doctor to take advantage of the fact that the patient had the foresight to purchase health or life insurance. Some would allow a doctor who committed malpractice and injured a patient to pay any judgment in installments.
So just how are these proposals good for the patient? Not a single one of them does anything to reduce malpractice by doctors. Not a single one of them does anything to improve the quality of medical care. Not a single one of them does anything to make sure that patients injured by substandard medical care are identified and fairly compensated for their injuries. On the other hand, every one of the proposals makes it harder for patients injured by substandard care to be compensated for those injuries. Every one of the proposals makes it easier for doctors to escape responsibility for those occasions on which they injure patients through substandard care. Exactly how is this good for patients?
According to the AMA, these limitations on patient’s rights are good for patients because doctors won’t worry so much about being sued. They won’t leave the practice of medicine and not be there for their patients. They won’t have to order unnecessary tests and do unnecessary procedures because they are worried about being sued if they don’t. This is such a good deal for patients that they ought to be down at the legislature this instant insisting that lawmakers take away their rights.
Each of the AMA’s proposals is based upon a number of false premises. The first false premise is that doctors are being unfairly sued when they have done nothing wrong. In point of fact, just the opposite is true: Doctors are rarely sued, even when they have injured patients through substandard care. The statistics are clear. They show that there is a baseline amount of medical malpractice which greatly exceeds the number of malpractice suits that are filed. Doctors already get away with murder. They don’t need any more protection.
The second false premise is similar to the first. It is that doctors are such special people that, unlike the rest of us, they should not be held responsible for their mistakes. The basis of our civil justice system is that when we make a mistake that injures another, we should be held responsible for that mistake and make it up to the person we injured. Not only is it fair to compensate the injured victim, the fact that there are consequences for my carelessness tends to make me more careful in the future. Doctors should not be told that there are no consequences for substandard care. I value doctors as much as the next person, but they do not deserve special privileges, especially when those special privileges take away the incentive for the doctor to provide good care.
The third false premise is that doctors practice “defensive medicine” as a result of fear of being sued and that defensive medicine would disappear if only doctors didn’t have to worry about frivolous suits. Reviews of medical treatment and billing in states that have adopted some of these “reforms” show very little effect on the number of tests or on medical bills.
The final false premise is that doctors are leaving the practice of medicine in those states which don’t have special protections for them. There is no data to support this argument. While there are certainly localities that do not have good access to quality medical care, that is almost always due to economic considerations. Like the rest of us, doctors like to be paid. Since specialists working in metropolitan areas get paid the most and have the most resources and entertainment options available to them, a lot of doctors choose to work as specialists in that environment. This leaves poorer, rural areas struggling to get doctors to work there.
Our system of using lawsuits to compensate the victims of medical malpractice is certainly in need of reform, but not the kind advocated by the AMA. In the current system, only the most tragically injured patients can afford to hire a lawyer and seek compensation. In the current system, doctors fight even meritorious cases as a means of discouraging patients from suing. In the current system, doctors are not held liable unfairly. Instead they often unfairly escape liability when they have committed malpractice and injured a patient. These are the problems that need reform. What we don’t need is to make it even more difficult than it already is for patients to receive justice.
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