Tuesday, October 30, 2012


A baseball player that hits at three hundred does not make it to first base 7 out of 10 times and is labelled really good. A player that hits at four hundred won't make it to first base 6 out of 10 times and is called legendary. What should the success rate for a cardiac surgeon be?

Given that doctors are human and make mistakes just like anyone else, what role should malpractice insurance, medical liability, and tort fees play? To what extent should a person be able to sue for a real or imagined mistake? Should there be a financial limit set to how much a patient can be affected by a mistake? Who should pay the legal fees?

The system as we have it favors malpractice suits. Malpractice law currently supports the use of contingency or conditional fees for lawyers 90% of malpractice cases are dismissed without payment, but since the loser (patient in 90% of the cases) does not have to pay the legal fees of the doctor, the doctor pays more than $110,000 just to defend that one case. Additionally, the patient's legal fees are covered by the representing lawyer by a "no win no fee" agreement  There is no disincentive for a patient to sue and such cases are usually only limited by a cherry picking lawyer who think the case is meritorious enough to sue.

This isn't to say that malpractice serves no purpose or that it has no place in our healthcare system. There are always going to be glaringly obvious or grossly negligent actions with unfortunate outcomes. One reason medical tourism to the United States is high because there is a system in place for recompense should things go wrong.

There is some evidence that litigation can be avoided in some cases where the hospital or doctor has a habit or culture for expressing empathy when something bad has happened and giving an apology when it results in an unfortunate outcome.

Other countries have different options that drive down the costs and defensive medical procedures. Some countries have caps or maximum allowable amounts for claims. Others raise the standard for the 'burden of proof' ("the necessity of proof lies with the person who lays the charges") which makes it more difficult to prove that a doctor committed a fault. Most Western democracies (with the exception of the United States) operate under the 'English rule' in which the loser pays the legal fees of both parties. In Australia malpractice insurance is only three or four digits instead of  five or six digits. One reason is that lawyers are prohibited from practicing on a contingency basis which means that only the patients who are willing to pay legal fees out of their own pockets get to sue. Obviously, only the most terrible mistakes go to court.

Is tort reform necessary? The Journal of the American Medical Association discussed how defensive medicine impacts physicians and patients.

Results  A total of 824 physicians (65%) completed the survey. Nearly all (93%) reported practicing defensive medicine. “Assurance behavior” such as ordering tests, performing diagnostic procedures, and referring patients for consultation, was very common (92%). Among practitioners of defensive medicine who detailed their most recent defensive act, 43% reported using imaging technology in clinically unnecessary circumstances. Avoidance of procedures and patients that were perceived to elevate the probability of litigation was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous 3 years, including eliminating procedures prone to complications, such as trauma surgery, and avoiding patients who had complex medical problems or were perceived as litigious. Defensive practice correlated strongly with respondents’ lack of confidence in their liability insurance and perceived burden of insurance premiums.

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