Political Malpractice

As I believe I mentioned a couple of days ago, one of the bogus gestures of the supremely, world historically, reality shatteringly b-o-o-o-o-o-o-o-o-o-o-gus Health Week was an attempt to impose a cap on medical malpractice awards, which the Senate Democrats, activating their newly installed gonads, blocked.

Now, the medical malpractice system is for sure not as good as it could be. Actually, the biggest problem is not with malpractice law per se but with the socio-political context in which it sits. Because we do not have comprehensive, universal health care in this country, or an adequate social safety net, people who suffer severe injuries from medical intervention, or for whom medical intervention fails to provide a solution, may find that they have no way to pay for their long-term, possibly life-long needs. Their only recourse may be a malpractice suit. But whether people win compensation does not depend on the extent of their injuries or need, but on whether their physician is found to be negligent, which is almost beside the point.

In any case, complaints about the system from doctors and insurers -- at least the ones that Republicans like to channel -- focus on "frivolous" lawsuits and "greedy trial lawyers" winning "excessive" awards. In the new NEJM (abstract here for you commonfolk) David Studdert and half of Harvard Medical School give us the straight dope on malpractice. Based on a sample of actual claims -- yes, it's that obsolete "reality based" thinking -- they find that while 37% of claims did not involve medical error, in their judgment, most of them did not result in any compensation to the plaintiff. For the 27% of claims they thought were without merit, that did result in some sort of compensation, the compensation was much less than it was for meritorious claims ($313,205 on average, vs. $521,560.) In almost all of these cases, the plaintiffs did suffer injury. Had they not received some compensation through the malpractice system, they would have had no other recourse.

However, there were far worse problems. Only 73% of claims that were meritorious resulted in compensation. One out of every six claims involved errors, and received no compensation. Furthermore, the majority of negligent injuries, it has been found previously, do not result in any claims at all. What is more, administrative and legal costs amount to 54% of the total amount paid to plaintiffs, nearly 80% of which costs were incurred in litigating meritorious claims. Finally, it is important to note that many claims which ultimately were found not to involve medical error could only be so classified as a result of the investigation and discovery resulting from litigation. These claims were not "frivolous" when they were first filed, but required the legal process to be properly evaluated.

The bottom line is, greedy trial lawyers are not abusively extracting money from the system. On the contrary, most people injured by medical error receive no compensation at all. Average compensation is in the hundreds of thousands, not millions of dollars. Eliminating non-meritorious claims would reduce the cost of malpractice by only 13%, but it would obviously be impossible. The purpose of the system is to judge claims. Some that are not ultimately found meritorious will have to enter the system in order for that to happen. The vast majority of the money spent in the system is spent on adjudicating and paying meritorious claims.

If physicians want to reduce the cost of malpractice insurance, the best thing to do would be to reduce the rate of malpractice.