Malpractice Suits: The Problem and a Solution

by Megan Kalmanir, Whitney Clar, Evan McClure, & David Younts

It is perhaps an American dream to win the lottery.  It is a chance to acquire money for nothing and change your fortune overnight.  This same free money principle can come from winning another type of lottery: malpractice lawsuits.  The controversy over malpractice lawsuits is a huge problem in our society.  With contingencies, trial lawyers are acquiring large amounts of the final settlement money from doctors and hospitals.  Commonly known as “ambulance chasers,” these lawyers encourage people to sue, offering these clients a no risk situation, no matter how frivolous the claim.  According to the author of "Politics Keeps Real Remedies for Medical Errors off Radar," because of the rising number of malpractice suits, doctors must purchase malpractice insurance, thus raising the price of health insurance to Americans (Politics).  The rising number of frivolous and “bogus” malpractice suits, although intended by the courts to provide justice to the supposed victims, is not only causing good doctors to lose their practice, but adversely affecting all of society by raising the costs of medical treatment.

As argued by the writer of “Bush and Kerry fail to Grasp Health Crisis Magnitude,” health care in the U.S. is currently a crisis (Bush).  Writer Kenneth Jost reveals that medical liability insurance cost doctors around seven billion dollars a year (Jost). Also, the average monthly premium for a family is up sixty-four percent from the year 2000 (Bush).  According to historian Kenneth Deville, medical progress generates heightened expectations among patients and doctors, which combines with other legal and social changes to produce more litigation and more and larger damage awards (Jost).  For example, according to the author of “Politics...”, $10-million was recently awarded to a family as a result of the supposed malpractice during the birth of their daughter some twenty years ago.  Allegedly, the physician should have realized that “the pregnancy was high risk because of the presence of gestational diabetes in the mother and should have referred her to an obstetrician. 

The author also described that during his presidential campaign in 2004, President Bush blamed these "junk lawsuits” for driving up the cost of medicine and "running good docs out of practice.”  He argued that the President also favored a cap on punitive and non-economic amounts rewarded to an individual (Politics).  Maureen Glabman, of Hospitals and Health Networks, conveys that three of the most common reasons plaintiffs win settlements or judgments against hospitals are delayed care, diagnosis failures, and medication errors (Glabman).  Jim Drinkard, of USA Today, quotes Bush’s statement that the nation’s medical liability system is badly broken and access to quality health care for Americans is endangered by frivolous and abusive lawsuits (Dems).

According to studies in USA Today, it is difficult to discern whether malpractice suits should be capped or non-existent.  The author states that Democrats said liability caps would be no cure for the problems.  It is also conveyed in the article that having revealed photographs of patients who were disfigured or severely injured by poor medical care, the Democrats believe damage caps would deny these people fairness (Dems).  The Institute of Medicine, a federal advisory group, estimated that medical errors result in more than forty-four thousand deaths a year. A new study by Health Grades, a health care rating organization, said errors caused one hundred ninety-five deaths, on average, in 2000, 2001 and 2002 (Politics). “Even when people are the best at what they do, unfortunately they still make mistakes;” however, studies by a Harvard researcher, Lucian Leape, M.D., indicate that hospital injuries can be reduced by twenty to seventy percent (Glabman).  Pamela Para, R.N., of the American Society for Healthcare Rick Management, states “Malpractice insurers might reduce premiums for clinicians who take risk management/patient safety classes,” as one way to reduce the number of injuries.  Other solutions Para believes will reduce this number, is by creating policies limits based on the safety training each physician received (Glabman).  As argued by many, in some cases, the mistake may be fatal and cost doctors their entire practice.  Doctors do not work alone, however.  Many believe that because they have an entire team as well as machinery which may also be faulty, much of the time the doctors are merely scapegoats in the suits.  Surgery is a risk for the patient and should not be a risk for the doctor.  According to the author of “Politics…,” many physicians often perform extra costly tests to protect themselves from suits filed by patients alleging that a medical problem was missed” (Politics).

Many doctors now practice what is called “defensive medicine” and are incredibly fearful of lawsuits.  Jonathan Cohn of the New Republic argued that many doctors order unnecessary test and procedures, driving up the cost of health insurance, in order to protect themselves from the repercussions of even the most unlikely mistakes (Cohn).  However, even these tests do not seem to be enough for Americans.  So what is the result of an “I’ll sue you society?”  According Kenneth Jost, recently, the effect of advances in diagnosis and treatment has been seen as a major contributing factor in the increase in obstetric litigation (Jost).  Fears of lawsuits and high insurance premiums are forcing some physicians to quit, move to states where premiums are more stable, or even limit services.  According to USA Today, one in seven obstetricians/gynecologists has stopped delivering babies, according to a survey during the summer of 2004 by the American College of Obstetricians and Gynecologists (Politics).  This has resulted in Americans being left with fewer doctors while the population of citizens continues to grow every day.

More thoughtful approaches to reform have been suggested by the Institute of Medicine and other groups.  USA Today argued that, “under one promising option, doctors could gain immunity from lawsuits by quickly admitting mistakes and offering payments to injured patients. The government could offer financial incentives to hospitals that agree to speedy resolutions of disputes over medical errors” (Politics). Although this approach is somewhat promising, it is unlikely that many doctors would admit to their mistakes and jeopardize their practice.  Many believe that this option would, however, eliminate the opportunities of trial lawyers and supposed victims to sue doctors over exaggerated claims.  According to the writer of “Physician Affairs,” patients who are seriously injured should receive a greater percentage of awards in malpractice cases (Physician).  Jonathan Cohn, in his article “Trial and Error,” argued that “Today, a doctor who acknowledges an error exposes himself to a lawsuit; yet it is through precisely those introspective conversations that physicians, along with hospitals and managed care companies, can best identify and fix systematic problems in patient care” (Cohn).  Within the next ten years, however, most hospitals will acquire new systems and technologies that will prevent injuries and serve as “lawyer repellents,” announced experts such as James Bagian, M.D., P.E., and director of the VA National Center for Patient Safety (Glabman).

According to experts, a good medical malpractice system should have two goals: deterring doctors from committing malpractice and compensating its victims (Cohn).  Unfortunately, trial lawyers and patients have taken advantage of this system.  It is obvious that people would be less likely to sue if they had a risk involved in the suit.  However, a growing population of lawyers and the more and more frequent use of contingency fees have made free services so easily available that people are willing to sue even if they know they have no case (Jost).  Some experts believe that if the government passed a law stating that lawyers could not offer contingencies and must be paid upfront for malpractice suits, the number of frivolous cases packing the court system would decrease heavily.  It is believed this would force patients to ponder whether suing the doctor is worth risking their own assets and, in turn, deter patients from making exaggerated claims, ensuring that suits entering the court would be legitimate.  Jonathan Cohn argued that problems would then be eliminated such as the act of performing defensive medicine, which some experts have estimated to cost a whopping sixty billion dollars per year (Cohn).

Caps on non-economic damages are also a good solution to the problem.  According to Kenneth Jost, California’s Medical Injury Compensation Reform Act was the first to place a cap on such damages.  This act, included “pain suffering”, inconvenience, disfigurement and other non-pecuniary damage, limited non-economic damages at five hundred thousand dollars.  He also stated that in 1991, President George H. W. Bush placed a nationwide cap on non-economic damages at two hundred and fifty thousand dollars (Jost). 

Even when doctors are accused of malpractice, the option of no longer practicing at all can backfire on the intentions of the court to make the medical field safer.  Doctors go through years of extensive training and schooling before they actually become practicing doctors.  Their names and reputations should not be slandered instantly by trial lawyers using contingencies to court typically poor individuals into suing their health-care providers.  The American society has taken an intangible object, that being life, and attempted to place a monetary value on it.  This applied value has not only endangered the medical system in an America, but resulted in rapidly increasing rates of health care for everyone. 

To solve this issue, plaintiffs should only be able to sue for a capped amount of punitive damages and the cost of medical bills, missed work time, and bills while the patient was hospitalized in the event of malpractice.  At the same time, law firms dealing in these cases should be required to charge some upfront cost, deterring those patients without legitimate cases from filing suits.  Only in America are people rewarded for the mistakes of others and too many lawyers have taken advantage of this.  Should enormous payouts and contingencies continue to exist in the medical malpractice system, these “junk lawsuits” described by President Bush will not only continue to be part of the justice system, but could quite possibly cause one of us to someday find ourselves in the hospital unable to receive proper treatment due to a lack of insurance or practicing doctors.