So-called "legal reforms" would arbitrarily cap damages for non-economic loss in medical negligence cases and create hurdles to bringing claims. Such proposals attack individual rights and protect wrongdoers. Medical liability is a powerful deterrent to incompetent care.
Medical malpractice premiums amount to less than 1 percent of national health care costs, according to the U.S. Congressional Budget Office. Eliminating medical liability altogether would thus do little to contain health care costs.
Medical malpractice is actually the most profitable line of insurance written nationwide. Losses paid by insurers in 1991 for medical negligence amounted to only 31 cents out of every $100 of health care spending, according to insurance industry monitor A.M. Best.
Medical malpractice claims, which are extremely expensive to prosecute, do not clog our courts. Only 7 percent of all tort claims in 1992 involved any type of professional malpractice, including medical negligence, according to the National Center for State Courts.
Since 1985, the rate of claims has declined at an average annual rate of 8.9 percent, according to a 1992 American Medical Association publication.
A 1995 U.S. Department of Justice study analyzing civil jury cases in the nation's 75 most populous counties found that plaintiffs won approximately 30 percent of the 1,362 medical malpractice cases filed in the 12-month study period. Punitive damages were awarded in 13 of these 403 successful cases. The award exceeded $250,000 in just four of the 13 cases .
Malpractice occurs too frequently in America. The 1990 Harvard Medical Practice Study found that medical malpractice in one year in New York state alone contributed to the deaths of nearly 7,000 people -- an average of 19 deaths each day -- and injured 27,000 more. Researchers, who extrapolated from the Harvard study, concluded that 80,000 American die each year in part due to medical malpractice.
Despite this incidence of malpractice, only about 2,000 doctors (one-third of 1 percent of all doctors nationwide) are disciplined each year by state medical boards, according to the Public Citizen Health Research Group. Doctors who are disciplined often are sanctioned for transgressions other than negligence, such as substance abuse and fraud.
So-called "defensive medicine" is a red herring. Only a small percentage of diagnostic procedures -- "certainly less than 8 percent" -- is likely to be caused by a concern about malpractice liability, according to Congress's Office of Technology Assessment.
Health care providers often have a financial incentive to run up costs, according to the Consumer Federation of America. Physicians with financial interests in labs order 34 to 96 percent more tests than those without such interests. Prices at these labs are 2 to 38 percent higher than at independent, non-physician-owned labs.
Given the facts, shouldn't we focus on eliminating, or at least attempting to reduce, medical negligence rather than restricting the rights of those who are injured? Limiting individual rights will do nothing to root out the cause of medical malpractice -- incompetent health care.
Used with permission from The Association of Trial Lawyers of America. All rights reserved.