Perhaps the most widely understood failure of the 2010 Patient Protection and Affordable Care Act was the complete and total omission of any language addressing medical malpractice reform. While this omission is hardly surprising given the millions of dollars plaintiffs’ firms donated to democratic candidates, reforming the laws governing medical malpractice suits is badly needed because the volume of malpractice suits, whether baseless or meritorious, forces physicians to engage in a practice known as defensive medicine.
To provide pre-emptive legal cover for themselves, physicians must order unnecessary lab tests, screenings, and medications. Forbes estimates that this practice costs the healthcare industry at least $45 billion annually. For physicians, the primary concern is not whether or not they win a malpractice suit, it’s whether or not a suit is brought at all. According to a 2015 study by the GAO, the primary factor increasing the rise in malpractice insurance costs is a rapid rise in claims losses, which includes both settlements and payouts from trial losses. When a suit is filed, the easiest route for all parties is a settlement, which malicious attorneys know.
Dr. Brenda Sirovich, Professor at Dartmouth University’s Geisel School of Medicine and leader of a 2011 study into medical malpractice in the Archives of Internal Medicine, says “...defensive medicine is practiced with the primary aim of minimizing litigation.” She goes on to say the idea that malpractice suits play only a small role in healthcare costs is flawed: “Malpractice is a very feared thing, a completely destructive experience.” She supports this with the finding that 42% of Physicians in family and general internal medicine said patients were receiving too much medical care.
The spectre of malpractice litigation clearly alters the way Physicians practice medicine. When the 2014 Survey of America’s Physicians asked over 20,000 doctors to identify reasons for increased healthcare costs, a full 60% cited defensive medicine practice, making it the most frequently cited response. A 2013 study in Health Affairs found that Doctors with high levels of malpractice concern were more likely to engage in defensive medicine practices for certain patients. In 2014, another study by the Cleveland Clinic in JAMA Internal Medicine found that 42% of orders surveyed were at least partially defensive.
In 2003 Texas attempted to solve this problem by capping the amount of non-economic damages of a malpractice claim at $250,000. While this did dramatically decrease the amount of money paid out, it did little to reduce healthcare costs. Recall that the problem is the existence of a lawsuit, not the resulting damages.
A better approach to minimizing unnecessary malpractice litigation is called “English law” is also commonly referred to as “loser pays law”. As the name suggests, the loser of a civil litigation suit must compensate the winner for their expenses. The Manhattan Institute shows such a system would decrease the number of baseless civil litigation claims. This approach is undeniably effective, but not without flaw. Malicious attorneys could convince plaintiffs that they have a case and then simply collect attorneys’ fees. Patients could lose a suit and then prove unable to pay.
The best complement to English law is a system in which Judges can label suits as frivolous in some official capacity. After a particular attorney has a requisite number of frivolous cases labeled as such in a given year, he or she is barred from bringing civil suits forward for a short period of time.
This dual burden of decision and consequence will stem the tide of threatening litigation that is so often used as a tactic of coercion in this nation. Healthcare costs are rising, doctors are distracted from care outcomes, and the suffering of those afflicted by true instances of malpractice is marginalized. The shameless lack of discipline consistently displayed by malpractice attorneys represents a clear and present danger to the general public and a blatant disrespect for the judiciary. Enlarging the scope of judicial discretion especially will allow the merits of each case to be considered without the risk of yet another bloated bureaucracy or quixotic “one size fits all” solution. This system will reduce the incentive for defensive medicine and save the American healthcare system billions of dollars a year.
To provide pre-emptive legal cover for themselves, physicians must order unnecessary lab tests, screenings, and medications. Forbes estimates that this practice costs the healthcare industry at least $45 billion annually. For physicians, the primary concern is not whether or not they win a malpractice suit, it’s whether or not a suit is brought at all. According to a 2015 study by the GAO, the primary factor increasing the rise in malpractice insurance costs is a rapid rise in claims losses, which includes both settlements and payouts from trial losses. When a suit is filed, the easiest route for all parties is a settlement, which malicious attorneys know.
Dr. Brenda Sirovich, Professor at Dartmouth University’s Geisel School of Medicine and leader of a 2011 study into medical malpractice in the Archives of Internal Medicine, says “...defensive medicine is practiced with the primary aim of minimizing litigation.” She goes on to say the idea that malpractice suits play only a small role in healthcare costs is flawed: “Malpractice is a very feared thing, a completely destructive experience.” She supports this with the finding that 42% of Physicians in family and general internal medicine said patients were receiving too much medical care.
The spectre of malpractice litigation clearly alters the way Physicians practice medicine. When the 2014 Survey of America’s Physicians asked over 20,000 doctors to identify reasons for increased healthcare costs, a full 60% cited defensive medicine practice, making it the most frequently cited response. A 2013 study in Health Affairs found that Doctors with high levels of malpractice concern were more likely to engage in defensive medicine practices for certain patients. In 2014, another study by the Cleveland Clinic in JAMA Internal Medicine found that 42% of orders surveyed were at least partially defensive.
In 2003 Texas attempted to solve this problem by capping the amount of non-economic damages of a malpractice claim at $250,000. While this did dramatically decrease the amount of money paid out, it did little to reduce healthcare costs. Recall that the problem is the existence of a lawsuit, not the resulting damages.
A better approach to minimizing unnecessary malpractice litigation is called “English law” is also commonly referred to as “loser pays law”. As the name suggests, the loser of a civil litigation suit must compensate the winner for their expenses. The Manhattan Institute shows such a system would decrease the number of baseless civil litigation claims. This approach is undeniably effective, but not without flaw. Malicious attorneys could convince plaintiffs that they have a case and then simply collect attorneys’ fees. Patients could lose a suit and then prove unable to pay.
The best complement to English law is a system in which Judges can label suits as frivolous in some official capacity. After a particular attorney has a requisite number of frivolous cases labeled as such in a given year, he or she is barred from bringing civil suits forward for a short period of time.
This dual burden of decision and consequence will stem the tide of threatening litigation that is so often used as a tactic of coercion in this nation. Healthcare costs are rising, doctors are distracted from care outcomes, and the suffering of those afflicted by true instances of malpractice is marginalized. The shameless lack of discipline consistently displayed by malpractice attorneys represents a clear and present danger to the general public and a blatant disrespect for the judiciary. Enlarging the scope of judicial discretion especially will allow the merits of each case to be considered without the risk of yet another bloated bureaucracy or quixotic “one size fits all” solution. This system will reduce the incentive for defensive medicine and save the American healthcare system billions of dollars a year.