Perpetuating Malpractice Woes

The past few years have seen a destructive increase in outlandish jury awards for the victims of medical malpractice in the U.S. Multi-million-dollar judgments are undermining doctors’ ability to provide effective health care—and last week’s Democratic filibuster of the Senate’s Pregnancy and Trauma Care Access Protection Act of 2004 hindered legitimate efforts to protect the health care system from the consequences of unreasonable verdicts.

While medical malpractice victims deserve appropriate compensation for their injuries, it is inherently difficult for juries to determine culpability based on the testimony of opposing expert witnesses—and even harder to place a monetary value on such intangibles as physical and emotional distress. Though the number of successful malpractice suits has stayed relatively stable, emotionally-driven jury awards have skyrocketed—the Insurance Information Institute reports the average award increased 43 percent between 1999 and 2001 alone.

Aside from the immediate costs to doctors in the form of higher malpractice insurance rates, increasingly-expensive malpractice suits impede legitimate medicine by putting doctors on the defensive. Fearful of future scrutiny by juries unfamiliar with the complexities of medical decisions, doctors are pressured to prescribe unnecessary tests and procedures in order to demonstrate that they explored every possible option for care. The New England Journal of Medicine (NEJM) reports that current estimates place the cost of this so-called “defensive medicine” at up to $20 billion annually. In addition, NEJM has found that doctors’ fear of litigation harms patient safety. When errors do occur—as they inevitably will—doctors have every incentive to cover them up, rather than report the errors and attempt to address underlying procedural problems.

Excessive malpractice awards also make practicing medicine more expensive, thereby limiting its availability. The cost of malpractice insurance premiums has become unbearable for many doctors, especially in high-risk professions. For example, Time Magazine reported last summer that from 2001 to 2002, obstetricians-gynecologists saw an average 19.6 percent increase in premiums, and emergency room trauma specialists saw a 56.2 percent increase from 2002 to 2003. These increasingly higher costs can force doctors to take extreme measures, such as refusing to perform specific procedures—last summer, half of the ob-gyns in Tacoma, Wash. refused to deliver babies—and even moving their practices to states with lower premiums. The Philadelphia Daily News reported that over the last two years, close to 500 doctors have left Pennsylvania, with 77 percent heading to states that limit malpractice damages in some way. As a result, millions of Americans are now hours away from the medical attention they need.

The national bill presently before the Senate would limit non-economic damages, such as pain and suffering, to $250,000 and cap punitive damages at twice the economic damages, though the cap cannot be less than $250,000. Economic compensatory damages—such as medical fees and lost wages—would remain uncapped.

Nineteen states have already enacted caps on malpractice damages, and the falling payouts have proven effective in lowering costs for doctors. A report by the federal General Accounting Office from August 2003 found that, despite opponents’ common claims to the contrary, malpractice premiums rise more slowly in states with caps. A profitability study by the National Association of Insurance Commissioners found that from 1975 to 1999, premiums have increased 420 percent nationwide. However, California—which, in 1975, became the first state to implement caps on non-economic malpractice damages—saw only a 168 percent increase over the same period. States with caps have, perhaps unsurprisingly, also seen a greater increase in the number of practicing doctors per capita—12 percent more than states without caps, as reported by the federal Agency for Healthcare Reform and Quality.

Limits on the non-economic and punitive damages awarded in malpractice suits are a positive step toward improving the effectiveness and availability of medical care. In maintaining a filibuster, Senate Democrats are turning away from the interests of the people and instead submitting to the demands of lawyers, who stand to lose out twice if the bill passes. Lawyers will be allowed to take a comparatively smaller slice of a reduced pie: Not only would the bill impose absolute caps on the amount of money paid out, it would also limit the percentage of those damages that attorneys are allowed to claim. According to a study released by the Employment Policy Foundation, lawyers see an astounding 52 percent of damages on average—plaintiffs currently receive only 32 percent—and the bill would cap legal fees at 40 percent.

The 107th Congress failed to pass medical malpractice tort reform, leaving doctors in a precarious position and an unacceptable number of Americans without access to adequate medical services. While the current bill would not solve America’s health care problems, it would go a long way toward easing the burdens placed on doctors as a result of excessive malpractice awards. It is time for Democrats to look past the malpractice lawyers’ special interest and eliminate the present distortion of the American health care system.

Joshua D. Gottlieb ’07 lives in Hollis Hall. Hannah E.S. Wright ’06 is a social studies concentrator in Lowell House. They are both Crimson editors.