The conflation game

A certain pathological liar is visiting Madison County, Illinois today to campaign for medical malpractice "reform." The American Tort Reform Association, a front for business groups that give major financial support to the Republican Party, has called Madison County the nation's "Number 1 judicial hellhole" because, they claim, it's judges favor plaintiffs in personal injury suits. The Liar in Chief will claim that the cost of malpractice insurance is driving doctors out of business, depriving people of access to health care, and that the reason insurance costs so much is that juries, hypnotized by the evil mind-control powers of trial lawyers, give excessive awards to plaintiffs and judges let them get away with it.

Although states control tort law, including medical malpractice, and conservatives and Republicans have historically proclaimed their support for states' rights and the devolution of power to the states, the LIC wants a federal law that limits awards for pain and suffering in medical malpractice cases, as a solution to the supposed malpractice "crisis." I don't know what he will say today exactly, but in the past he has spoken about "frivolous lawsuits" in the same sentence as "excessive" damage awards.

Like every word that issues from the mouth of the World's Most Powerful Liar, this entire "issue" is a torrent of bullshit from beginning to end. Malpractice insurance has become more expensive recently in some places, and particularly for certain specialties. But the cost of insurance premiums (for this kind of insurance, not health care insurance which is a very different creature) depends in part on some completely exogenous factors, such as the markets for financial assets. One reason insurance companies have raised premiums is because they lost money in the stock market and investments have been sluggish since.

In fact, average jury awards in malpractice suits have not been increasing. And large awards obviously have nothing to do with "frivolous" lawsuits. Frivolous suits never go to trial. The reason business interests and the LIC like to talk about them in the same breath as large jury awards is to mislead the public. It's the identical tactic that had a majority of the public believing that Saddam Hussein was behind the Sept. 11 attack, just keep mentioning them both in the same breath. Remember the bow-tied non-entity Tucker Carlson yammering about John Edwards winning "jaccuzzi cases," by which he referred to an award for lifetime care that Edwards won for a woman whose intestines were ripped out at a water park?

Juries give large awards to some malpractice victims because that is the only way to provide for the lifelong care needs of people who are severely disabled by medical negligence or incompetence. Unfortunately, for people who have bad outcomes which don't result from negligence, there is no recourse. And malpractice is not easy to prove. It is not enough that a physician made a mistake; the physician had to act with negligence or outside of the reasonable standard of care.

Insurance companies have not said that they will lower their premiums if damage awards are capped. However, a study commissioned by the Bush Administration (which it will surely bury) by researchers at the University of Iowa and the Urban Institute has said that defrocking the minority of physicians who are responsible for a disproportionate number of malpractice claims will indeed have an impact -- not by blocking compensation for injured people, but by reducing the number of injuries that happen in the first place. That indeed seems a better solution, no?

Of course, as visitor Dread Pirate Roberts points out in a comment below, state medical associations tend not to like that idea. According to Randall Bovbjerg of the Urban Institute, state medical boards have a very hard time revoking licenses. The process can take months or years,and is very expensive. A good article by Robert Pear in today's New York times discusses these issues.