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Do no harm

In the list of the economic dilemmas facing the nation, the cost of health care is right at the top. One of every six dollars in our national economy goes to health care, and the projections for the future all point in one direction: straight up.

Adding to the cost of health care in America? Medical malpractice lawsuits.

The controversy surrounding medical malpractice is hardly new, but because of President Barack Obama’s health care plan, the issue is getting some renewed attention.

There’s a provision in the Affordable Health Care Act that encourages states to experiment with medical malpractice reform — $50 million for expanded state demonstration projects — but critics say that more needs to be done to reform the system.

Every year, one in 14 doctors will be sued for malpractice. A survey by the American Medical Association found that ore than 60 percent of doctors over the age of 55 have been sued at least once in their career.

Most lawsuits will be dismissed, or resolved in favor of the doctor, but the cost of insuring against such suits can be huge — even to the point of driving some physicians out of the profession entirely. At the same time, the great majority of patients who suffer injury from malpractice never receive any compensation for what has happened to them.


  • Charles

    I would love to know how exactly the $50 million for pilot-project grants has been spent. How many grant applications were accepted? What were those applications for? What has been done?
    I think that this statement from the script is in error:
    “Most lawsuits will be dismissed, or resolved in favor of the doctor.” That’s not true, and it is untrue in a misleading way.
    Most lawsuits are settled. They may be settled for a small amount if it is a lousy case, or they may be settled for a large amount if it is a good case.
    Trust me on this; good malpractice defense attorneys know exactly what to do when they are confronted with a meritorious claim that makes sense, with credible expert support and with serious damages; they settle those cases. Usually for a very large amount.
    A few cases are dismissed because they are defective. Those are relatively few. Contingency-fee lawyers lose money on those cases. Contingency-fee lawyers don’t like losing money.
    Of the cases that go to trial, it is true that the defendants usually win. That is because those cases are, in a sense, self-selecting. The defense side usually goes to trial only when they are pretty sure that they will win. And something like 80% of the time, they predict correctly and they do win. In rare cases, it is really a close call, and due to one side’s negotiating intransigence, the parties cannot reach a pre-trial settlement. In those cases, an old saying goes, the only thing that is more expensive than having the best lawyer in town, is having the second-best lawyer in town.

  • Charles

    I have an additional comment about the Danish system for malpractice claim resolution. (Kudos to the Need to Know team for the fascinating look into the Danish system.)
    My comment is this; it seems to me, from afar, that if there is a pattern of bad performance on the part of a given doctor, the Danish system will quickly pick that up, officially, through its claim system.
    And there is no corollary to that in the American system. The Danes may be doing that part (along with other parts) better than we are.
    Now, I would not claim that American doctors are unregulated; they are not. We have several different methods of catching bad doctors. One is the simple fact that hospitals are not interested in having bad doctors on staff. The most typical punishment for a doctors repeated unexcused malpractice, is to be booted off the staff of his hospital. But that is an imperfect method, in a big country.
    We also have a National Practitioner Databank, which is supposed to collect information on malpractice lawsuit settlements and judgments. That system is beyond flawed; it is a bad joke. Lawsuits are uniquely bad ways of judging real error. Lawsuit results only judge lawsuits. The Databank reporting is spotty, and error-prone, and the data is almost useless.
    Finally, we also have state medical boards. And on this particular subject, I am sympathetic to my brethren in the plaintiffs’ bar who claim that doctors have done a bad job of policing other doctors, at least in the form of licensing inquiries. But one of the real problems in that system is that it sets itself up as a kind of quasi-criminal system, where they accused is accorded great deference. In any event, by the time many doctors get to the level of a state licensing board investigation, they have already done a lot of harm.
    All this is yet one more reason to overhaul the American system of malpractice litigation.

  • Geoff Teed

    So with 200,000 preventable deaths each year in the US health care system–this number is closer to 400,000 if you add “failure to rescue” and there’s another over 2 million patients each year harmed by avoidable errors but don’t die, why isn’t the conversation about how we prevent preventable deaths?

    This gets done everyday by the dedicated army of frontline clinicians, researchers and thoughtleaders like Don Berwick with his 100k and 5m lives campaigns and Peter Pronovost and Richard Shannon who’ve used simple 5 point checklist (1. wash hands with soap, 2. clean the patient’s skin with antiseptic, 3. put sterile drapes over the patient, 4. wear sterile mask, hat, gown and gloves, and 5. put sterile dressing over the catheter site) to eliminate central line bloodstream infections in the ICU where the sickest patients are cared for–Pronovost’s Keystone Project in Michigan ICUs eliminated 1500 deaths and saver over $100mm in 18 mos. This isn’t rocket science it’s rocket fuel!

    See, it’s simple. Just fix the system — or do what Berwick, Pronovost, Mary Naylor, etc do by creating simple but reliable solutions to solve the issues.

    BTW, the math is kind of scary: take 200,000/365 this = 547 PREVENTABLE deaths per day. That’s like two fully loaded 747s falling out of the sky each day – for no reason. There would be no airline industry. Considering this it seems crazy to be talking about tort reform. It’s hard to bring a malpractice suit if there’s no malpractice.