The Medical Malpractice Myth

In January 2005, President Bush gave a speech on medical liability “reform” in Collinsville, Ill. The president’s podium was in front of bleachers full of cheering doctors, beneath a large banner that read: “Affordable Health Care.” President Bush’s speech proceeded through the medical malpractice myth point by point: the frivolous lawsuits, the courts’ bias against doctors, “skyrocketing” jury awards, huge settlements in cases where doctors did nothing wrong, huge increases in medical malpractice premiums, doctors leaving the practice, pregnant mothers who cannot find doctors and the huge waste of money on “defensive” medicine: a system “out of control.”

On May 11 the New England Journal of Medicine published a study conducted by physicians at the Harvard School of Public Health on 1,452 closed malpractice claims from five liability insurance carriers to determine whether an injury had occurred, and, if so, whether it was a result of medical error. The study reached two conclusions:

•Portraits of a malpractice system that is stricken with frivolous claims are overblown.

•The malpractice system performs reasonably well in separating claims without merit from those with merit and compensating the latter.

The study noted that the incidence of patients seriously injured as a result of medical negligence who don’t receive compensation is a far larger problem than cases where damages are awarded where negligence is not present. Interestingly, The Journal Gazette wrote the following headline for the Associated Press report: “4 in 10 malpractice torts baseless.” The story appeared on the front page of The Journal Gazette on May 11.

In 1999, the Institute of Medicine of the U.S. National Academy of Sciences released a report announcing that medical errors kill up to 98,000 U.S. residents every year. Medical negligence kills more people than auto and workplace accidents combined. Studies show that there are between seven and 25 serious medical malpractice injuries for every one medical malpractice lawsuit filed.

The fact is that the vast majority of the patients who are on the receiving end of medical malpractice do not sue, which means that the victims themselves – not doctors, hospitals or insurance companies – bear the lion’s share of the costs of medical malpractice in the form of lost lives, disability and extra medical expenses. The Harvard study disproves claims made by medical malpractice insurance companies, medical associations and politicians that the civil justice system is overrun by frivolous medical malpractice lawsuits.

The primary myth in the medical malpractice debate that needs to be exposed is the myth regarding the effect of those costs on the health care system. Tort reform proponents have bamboozled the public and many legislators into believing that the cost of medical malpractice lawsuits is a significant factor in driving up the cost of health care. In 2003, the U.S. spent $215 billion on liability insurance premiums, and doctors, hospitals and other health professionals paid only $11 billion in medical malpractice insurance premiums. That same year, the U.S. spent more than $1.5 trillion on health care. Something that costs less than 1”‚percent of total health care costs simply doesn’t have any meaningful effect on access to health care. If we want to address the real problems with the cost of health care, we should start with the evidence, not the myth.

For readers who would like to read a summary of the Harvard study, it is titled “Claims, Errors and Compensation Payments in Medical Malpractice Litigation” and can be found at http://content.nejm.org/.
--------------------------------------------------------------------------------
David L. Farnbauch is an attorney with the Sweeney Law Firm in Fort Wayne. He wrote this for The Journal Gazette.