My esteemed colleague DrRich recently wrote against malpractice reform – Covert Rationing Makes Malpractice Reform A Bad Idea.
Consider the implications of the malpractice system to patients in such an environment. In a healthcare system where physicians are being urged, cajoled, threatened, incented and coerced to practice medicine to some statistical mean and not to the individual, and where the “mean” to which they are supposed to aspire is determined by central authorities mad with the need to covertly ration care, the only real leverage patients retain is the implied threat to sue doctors who fail to address their individual needs. The threat of malpractice litigation, as wasteful and counterproductive as it is, provides at least some degree of balance in the doctor-patient encounter, and gives doctors (even those whose professional pride has been successfully eroded by all the many efforts aimed at doing just that) a good reason to always ask themselves, “Is this action I’m about to take the action that THIS patient really needs me to take?”
Now I completely disagree with this logic, which I have difficulty following. As I interpret the malpractice crisis, too often I see doctors not ordering studies which the patient really needs, but rather studies that might prevent future litigation. How else do we explain the overuse of CT scanning in the emergency room?
Texas has malpractice reform, and it is working. Why Doctors Are Heading for Texas
That confrontation fizzled, however, and before long Texas succeeded at enacting two simple but effective reforms. One capped medical malpractice awards for noneconomic damages at $250,000, changed the burden of proof for claiming injury for emergency room care from simple negligence to "willful and wanton neglect," and required that an independent medical expert file a report in support of the claimant.
The problem with malpractice is not accountability but the financial lottery aspect. The Texas reform reduces the lottery aspect. Now, as I get ready from the tort lawyer attack squad, I do know that physicians win most trial cases. However, that barely describes the problem. Winning a malpractice attack (yes I chose that word carefully) has great costs, financial and psychic.
So I will ask DrRich how the Texas plan endangers the doctor patient relationship. I will suggest a week long debate between our blogs. The die is cast.
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2 Responses to Why I favor malpractice reform
Aaron
May 17th, 2008 at 9:23 am
Of course, the picture is much more complicated than you choose to pretend.
I am not sure why you consider drawing your attention to facts to be an “attack”. But if that’s how you choose to see it….
Tom
May 17th, 2008 at 9:25 am
I’ve worked in the professional liability business for over ten years. I like the change to the burden of proof for ER care and the requirement of an independent medical expert. However, I have always maintained that caps are of little value and shouldn’t have much impact on malpractice insurance rates. A vast majority of our losses are claims that settle for less than $200k. The runaway awards are anomalies that make good press but have little aggregate impact on the insurance business. Also, remember that caps usually apply only to pain and suffering, there is usually no cap on economic damages.