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MEDICAL MALPRACTICE.
Term Paper ID:20371
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Examines reform plans from medical & legal perspectives. Insurance, govt. intervention, tort system.... More...
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Paper Abstract:
Examines reform plans from medical & legal perspectives. Insurance, govt. intervention, tort system.
Paper Introduction:
The Clinton Administration has taken on the difficult task of reforming the health care system in the United States, a system that has been beset in recent years by massive cost increases that threaten to lead to the rationing of health care or to some other draconian proposals to institute controls. One reason claimed for higher health care costs is malpractice liability and the accompanying increase in malpractice insurance rates, and thus reform of the health care system has been tied by many to a reform in the rules of litigation to reduce the size of damages that can be awarded for proven malpractice. The limitation of medical malpractice liability settlements is seen as a way of reducing health care costs, with those supporting this idea pointing their fingers at lawyers who take contingency fees and then push for the highest settlement possible in order
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Lawyers contend that such verdicts are justified, providingfull compensation for persons injured by doctors. While the Massachusetts case may havebeen extreme, nearly every state faced a similar situation. Ride into the orthopedic surgeon's office in a wheelchair, ride out on a bicycle. Opponents of suchchange note the need to send a strong message to medical personnel whocause harm and the need to provide as much money as possible for victimswho may require a lifetime of special care or who need to be compensatedfor immense pain and suffering. To judge by the popular press. Lawyers shot back that the real problem is bad doctors who are allowed to stay in business too long ("Doctors and lawyers cast the blame" 9).A particularly divisive confrontation between the two groups took place inMassachusetts where hundreds of doctors refused to treat patients as theyprotested a 68 percent rate hike that would increase malpractice-insurancepremiums up to nearly $3 , annually for some doctors. The press seems to alternative between attacking doctors andattacking lawyers on the health care issue as it may relate to malpracticelitigation and insurance: Doctor bashing has become a blood sport. Doctors claim it is greedy lawyers, and lawyers claimit is badly trained doctors or a greater willingness on the part of injuredparties to seek redress in the courts. James Todd,executive vice president of the American Medical Association, called it a"long-overdue and essential step towards saving a system in chaos."Lawyers' groups, on the other hand, said the president's plan took noaccount of the victims of medical malpractice who never sue or who collectonly paltry sums in settlements. Clearly, this is what litigation isabout, determining when it is bad result and when it is bad practice, andyet Colen assumes that the mass of decisions for patients have been madeerroneously, mistaking bad result for bad practice. "See you in court!" Health (November 1989), 52-54.Gibbs, Nancy. . News & World Report (May 27, 1991), 18.Colen, B.D. Walk into the plastic surgeon's office looking like Danny DeVito, walk out looking like Robert Redford. This pitting of one group against another is seen in a recentreport on the matter which referred to the nationwide debate on the matter: Physicians charged that "wolves"--greedy lawyers--and unjustifiable increases in insurance rates are driving them out of business. . . that this crisis results from complex interactions between the medical, legal, and insurance industries and cannot be blamed on any one source. Those arguing the matter thus tend to blameeither doctors for charging too much or lawyers for increasing the costs todoctors and thus to the public through litigation, with the implicationbeing that either the litigation is often unnecessary or the awards out ofline with respect to the injury or the degree of guilt of the doctor orhospital. Surveys show that the public is aware of theproblem but uncertain as to who is to blame. As such, medical malpractice is not one problem but a series of interrelated problems that involve the regulation and social control of medical practice, quality of care, insurance markets, and the consistent assessment of liability by the courts (Jacobson 3321-3322).Jacobson says that the tort system seems to award excessive compensation inmedical malpractice cases and impose higher liability standards onphysicians, which in turn may influence the increasing frequency ofmalpractice claims. Somelawyers claim the "crisis" is nothing but a propaganda campaign by theinsurance industry to justify premium hikes (Edwards 54-55). Punishinginjured patients and their lawyers, as a limitation would, will not solvethe health care crisis. "Medical malpractice and the tort system." Journal of the American Medical Association (December 15, 1989), 332 -3327.----------------------- 1 Malpractice suits remained uncommonuntil the early 197 s, and 8 percent of all cases filed in the UnitedStates since 1944 were filed after 197 . Jacobson believes that, in addition to stabilizing reforms in thetort system, reducing the incidence of substandard medical care isnecessary to resolve the current malpractice crisis (Jacobson 3322-3327). For example, the rising costs of healthcare influence larger jury awards which, in turn, lead to larger medicalmalpractice insurance premiums. The issue was brought to the fore in the last half of the Bushadministration with a proposal enunciated by Vice President Quayle to limitthe amount of damages in a variety of types of litigation, including notonly malpractice cases but also product liability cases and the like. Changes in the legal system over time haveresulted in more frequent claims of medical malpractice and larger cashawards. It would be just as true to state that lawyer-bashing has become anepidemic and that lawyers are being blamed for everything from America'slowered manufacturing productivity to the high costs of a hospital stay.This attitude can be seen in the views of B.D. The air of the operating room, where once the doctor was sovereign, is now so dense with the second guesses of insurers, regulators, lawyers, consultants and risk managers that the physician has little room to breathe, much less heal . It is clear that there is some problem causing an increase inmalpractice suits. At the same time, the system should punish physicians who fail to practice according to current medical standards (Colen 1 ).It is evident that Colen does not believe this is what happens now, and hebelieves that the system pays too much even to those who are truly wronged: If, for example, you are confined to a wheelchair for life as a result of a physician's error, you should be compensated with enough money to provide you with the same standard of living you would have enjoyed had you not been crippled. This is the claim madeby those who would limit malpractice settlements--they do not want to denypatients who are truly wronged, and yet limiting the size of awards woulddo just that. For their part, doctorsvowed to continue to campaign for federal and state laws that would abolishpunitive damage awards, curb lawyers' fees, and provide for expert panelsto screen out "frivolous" claims ("Doctors and lawyers cast the blame" 9). One reason claimed for higher health care costs ismalpractice liability and the accompanying increase in malpracticeinsurance rates, and thus reform of the health care system has been tied bymany to a reform in the rules of litigation to reduce the size of damagesthat can be awarded for proven malpractice. Nothing in medicine is stationary: the blinding speed of technological advances, the splintering effects of specialization, the onset of medical consumerism, the threat of malpractice suits have all bruised the doctor-patient relationship in recent years (Gibbs 48-49). An analysis of the issue shows that theamount of money that can be recovered in medical malpractice liabilitysettlements should not be limited, and claims that a limitation would solvethe health care mess are erroneous. The cost of malpractice insuranceis skyrocketing at the same time--in 1982, American doctorspaid, collectively, about $1.45 billion for liability coverage; in 1985,they paid almost $3.5 billion. Colen, who analyzes theissue in terms of how malpractice has affected health care not only interms of costs but in less tangible results such as reduced confidence indoctors. "Unjust rewards; who's to blame for the medical malpractice mess?" Health (July 1986), 1 ."Doctors and lawyers cast the blame." U.S. . He notes that the recent increase in the number ofmalpractice lawsuits, the size of liability awards, and escalatingmalpractice insurance premiums have all led to serious inquiries concerningthe underlying reasons for these awards and the effects that they have onhealth care services, and he also finds that medical practice standardshave not deteriorated, nor are individual physicians less skillful.Lawyers, the legal system, physicians and the insurance industry have beenblamed for the current crisis, and there is a growing perception that something is wrong with the manner in which the tort system assesses liability and awards compensation in medical malpractice cases. In other words, you should be compensated for your injury, but you should not be receiving a reward for it (Colen 1 ).One of the reforms Colen calls for is the establishment of a panel todetermine whether a given case is one of bad practice or bad result, and ifthe panel agrees that it is, the license of the offending physician wouldbe immediately revoked. Rising health care costs, for instance, contribute to larger jury verdicts, which in turn contribute to increased medical malpractice insurance premiums. Many physicians contend that the entire claim-settlement process fails to distinguish between negligent and nonnegligent behavior in assessing liability and thus exposes them to liability for adverse outcomes as well as for negligent medical practice. It wouldhelp the insurance companies more than the health profession and would alsonot be likely to reduce insurance premiums significantly. They agree that certain cases should be litigated and decided by a jury,but they do not trust the jury to assess damages: Perhaps, just perhaps, if we made suing for malpractice less financially attractive to patients, and committing malpractice professional suicide for physicians, we'd be less likely to see today's story of a medical miracle end as tomorrow's story of an astronomical malpractice award (Colen 1 ). Such verdicts pressure insurers to settle many other cases forlarge sums. The crisis wasseen as deriving from a sharp rise in the number of large malpracticeawards in recent years, and according to Jury Verdict Research Inc., 71plaintiffs won judgments larger than $1 million in 1984, compared with only3 in 1975. however, would only hurtthe deserving injured patient. Critics like Colen feel that the present system is unfair because itpunishes doctors who make a kistake rather than who are incompetent andbecause it is their insurance company rather then the offender who pays inany case. A recent public surveyrevealed that more than a third of respondents thought it was the fault oflitigious patients; about a quarter blamed bad doctors; another quarterblamed lawyers; and 15 percent blamed it on the insurance industry.Doctors blame the legal system, greedy lawyers, andlitigious patients, and many attorneys say medical negligence is theproblem and that patients are merely waking up to their rights. Peter D. Jacobson examined the problem and concluded that it was toosimple to blame the problem on any one group or any one element in thesystem of litigation. Colen says the patient should be compensated when malpractice occurs,but not when it is merely bad result. Colen refers to a specific case involving a number of suitsraised against medical professionals and betrays a certain prejudice whennoting, Whether or not their suit is justified, the Frustaci's case seems to be one more indication that something is wrong with the way we handle what we so broadly term "medical malpractice" (Colen 1 ).Colen states that malpractice is not simply a bad result, and yet it seemsto be so treated by the legal profession and the consumer: Somehow we health care consumers have come to feel that we are entitled to a perfect outcome every time we enter a hospital or doctor's office. . It might indeed prevent someone who did notdeserve an award from gaining a huge award just the same, but it wouldprevent those who do deserve a alrge award from getting it as well. Works Cited"A chorus of health-care reformers." U.S. What do we do when we don't get perfection? In any case, such areduction would not reduce the cost of health care significantly. To a great extent, the issue pits two professions, that of medicineand that of the law, against one another, as if the only solution were tochoose between doctors or lawyers as the profession to be blamed for thehealth care problems we face. Limiting the size of settlements. What Colen and others fail to do is explain anyobjective rationale to be applied to determining when an award is too high. There are more costs than simply insurancefor that matter, and estimates of the price of "defensive medicine" such asextra tests, hospitalizations and record-keeping to make a doctor suit-proof run into the billions. The medical community claims that the legal systemfails to identify negligence and holds physicians liable for undesirableoutcomes of care as well as for negligent care, but Jacobson holds that acomplex interaction of forces has caused the dilemma between medicalmalpractice and the tort system. "Sick and Tired: Uneasy patients may be surprised to find their doctors are worried too." Time (July 31, 1989), 48-53.Jacobson, Peter D. In1991, the Bush administration proposed limiting medical malpractice awardsfor pain and suffering to $25 , , and the reaction was mixed. . We sue (Colen 1 ).Colen points out that malpractice is just what it sounds like--badpractice, not bad result: It is not bad result or bad outcome, unless that bad outcome results specifically from the physician failing to exercise ordinary care and judgment in the practice of medicine (Colen 1 ). too many physicians who are not magicians are charlatans. The Clinton Administration has taken on the difficult task ofreforming the health care system in the United States, a system that hasbeen beset in recent years by massive cost increases that threaten to leadto the rationing of health care or to some other draconian proposals toinstitute controls. The limitation of medicalmalpractice liability settlements is seen as a way of reducing health carecosts, with those supporting this idea pointing their fingers at lawyerswho take contingency fees and then push for the highest settlement possiblein order to increase the size of their own reward. Medicalprofessionals expressed the fear that some people who needed emergency carewould have to go without it as surgeons, obstetricians and other high-riskspecialists turned patients away. The White House plan would have inducedstates to limit malpractice awards, and the administration claimed thatthis would control medical costs by alleviating pressure on doctors toorder unnecessary diagnostic tests to protect themselves against suits.Most health experts, however, stated that malpractice is only one area inneed of reform, and not even the one likely to save the most money orexpand care to a significant number of the 35 million Americans with nohealth insurance ("A chorus of health-care reformers" 18). Large jury verdicts and relatively easy access to the court system contribute to these perceptions (Jacobson 3321).As a result, much of the recent debate has focused on reforming the tortsystem as a solution to the recurring malpractice crisis, but Jacobsonfeels such efforts may be misplaced: It is more likely. Colen states, What we need is a system that will provide compensation--not reward--to those victimized by malpractice. News & World Report (February 17, 1986), 9.Edwards, Frank. Itwould imply that there is a limit to the pain and suffering a patient canexperience and for which that patient can be compensated, and this sendsthe wrong message to patients and doctors alike. He thus sees the system as in need of reform, wich may be true,and depending on how it is constituted and applied, a panel to weed outfrivolous claims could help both the medical profession and the over-crowded courts.
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