With health care reform being heavily debated about the country, trial lawyers are trying to preserve one of their cash cows.
Medical malpractice plaintiff attorneys continue to press their argument that lawsuits are essential to the nation’s health care. In fact, the trial lawyers created a web site called 98000reasons.org and are putting ads for the web site all over the Washington subway system to show our legislators some link between tort liability and the alleged 98,000 patients who die each year from medical mistakes. The logic on the front page of the AAJ web site states
“If less people need to seek legal recourse, that means patients are getting safer. Patients that are safer also means lower costs to the health care system. Everyone can support this.”
It will probably take a lawyer to explain that logic to me, but I digress.
The “98,000” number is taken from a study called “To Err is Human” done by the Institute of Medicine more than 10 years ago.
There are multiple criticisms of the IOM study. The method in which “deaths due to error” were determined was suspect. The patient population was composed of skewed samples. See here, here, and here to learn more about the criticisms of the study.
Regardless of the reliability of the statistics, those with an agenda cite the statistics as hard facts.
“The equivalent of two full jumbo jets are blowing up every day of the year due to medical malpractice and the only thing that can save us is more lawsuits!”
It’s obvious that patients die from medical errors. Whether that number is 98 per year or 98,000 per year, medical providers can always take steps to improve upon the care that they provide. Focusing on the imperfect nature of the humans who provide medical care is not the point of this post. Humans will always make mistakes – even lawyers.
The trial lawyers want us to believe that they are there to help our nation minimize mistakes. The American Association for Justice is pushing the concept that any attempts to reform the nation’s medical malpractice tort system would have disastrous effects upon the safety of our health care.
A quote on the AAJ site states “The simple truth is that any reduction in the risk of civil liability would remove a critical safety incentive.”
Phrase it however you want to …
The threat of liability improves safety.
Making doctors fearful of losing millions of dollars makes doctors practice better medicine.
We can sue our way to better health care.
Lawyers want doctors running scared.
The trial lawyers got their wish. Doctors are afraid of being sued for millions of dollars and getting dragged through a multi-year lawsuit. So a vast majority of doctors have responded by practicing “defensive medicine.”
Health care providers spend hundreds of billions of health care dollars per year on low yield testing that is fueled by the fear of malpractice lawsuits — a fear that lawyers assert is beneficial to create.
Then lawmakers started questioning whether our health care system could put the vast amounts of money spent on defensive medicine to better use.
Suddenly the trial lawyers started singing a different tune.
Trial lawyers created a “report” titled “The Truth About ‘Defensive Medicine‘”
The report contained multiple assertions, including …
“Direct costs associated with medical malpractice are a tiny fraction of health care costs.” Technically the AAJ statement is correct, but it is misleading. Direct costs of medical malpractice litigation and payouts may be a small fraction of the health care pie, but defensive medicine is an indirect cost that, by some estimates, adds hundreds of billions of dollars to health care costs each year. That’s not so small.
“There are little or no savings to be gained from reforms aimed at eliminating such tests.” In other words, tort reform won’t save the system any money. Would you like grape Kool Aid or fruit punch?
“Extra testing provides benefits to patients.” Hey – it’s good for patients when doctors perform expensive low yield testing to protect themselves from lawsuits. Nothing bad happens from all the radiation. There are no complications or extra costs incurred from false-positive testing. Pay no attention to that man behind the curtain.
If you don’t believe any of the above, then the AAJ report tries to convince everyone that defensive medicine is a figment of the imagination of all the doctors who say that they perform testing to protect themselves from lawsuits. Headings in the “Defensive Medicine” report include “Academics question the existence of defensive medicine” and “President Obama’s Budget Director Doubts the Existence of Defensive Medicine.”
The report states that
One government agency found that doctors chose not to order any tests or diagnostic procedures 95 percent of the time. Doctors who ordered tests almost always did so because of medical indications, and only one half of one percent of all cases involved doctors who ordered tests due solely to malpractice concerns.
If “defensive medicine” occurs in only 0.5% of all medical cases, then obviously the “risk of civil liability” isn’t having its intended effect. All of us doctors are hardly doing anything to protect ourselves from civil liability. We’re not scared enough.
On one hand, the AAJ asserts that we should increase/maintain the threat of liability to maintain the safety of our health system. On the other hand, the AAJ asserts that the doctors are not responding to the threat – which is apparently why 98,000 people per year are allegedly dying from medical mistakes.
If the threat of civil liability makes doctors practice better medicine, the threat of criminal liability would be lead to even better health care. Doctors who allow patients to become ill or die should be considered felons. With doctors so afraid of being thrown in jail, the medical profession would find a way to make patients live forever. The practice of medicine would be perfect.
Funny, though. If the AAJ assertion that “any reduction in the risk of civil liability would remove a critical safety incentive” is true, I don’t see the lawyers plastering the subways with advertisements advocating legal malpractice suits as a way to improve the practice of law in this country. Or advocating that we implement judicial malpractice to improve the practice of court proceedings in this country.
I know. The Democrats are just waiting to pass health care reform before putting legal and judicial malpractice on next year’s agenda.