Doctors misdiagnose malpractice problem
To find a real cure, first stop putting blame on lawyers and juries

"The medical community and insurance companies contend that our medical malpractice insurance system is sick, and have diagnosed that the malady is caused by lawsuits.

Their diagnosis is wrong and their prescription for cure is misguided.

While medical malpractice premiums are steadily rising, lawyers and juries are not the reason. Nor is limiting the rights of injured patients the answer.

The medical malpractice "reformers" use scare tactics and distort statistics for one purpose -- to become exempt from the court rules and legal standards that apply to everybody else.

A recent article in The Observer, "Medical industry does little to fix fatal errors," reported that in 1999, the Institute of Medicine found that 98,000 hospitalized Americans die and one million are injured annually from preventable medical errors. The article revealed that, in the last three years, "almost no progress has been made." More ominously, doctors have strenuously resisted the institute's recommendations to reduce avoidable mistakes.

Yet the medical community seeks special treatment to achieve even less accountability.

Here are the facts:

1. Doctors aren't leaving and hospitals aren't closing. I might support "reform" efforts if I believed lawsuits were reducing access to medical care. But they aren't.

Does the following dire prediction sound familiar? "Doctors and hospitals in West Virginia have been saying for weeks that they would have to close their doors at the end of this month when three major insurance companies planned to cancel malpractice insurance coverage."

The quote appeared in The Washington Post in 1986. Medical groups have been claiming the "sky is falling" for decades. Their current shrill rhetoric is just more of the same.

Medical groups in Mississippi assert that doctors are fleeing -- yet that state gained 564 doctors over the past five years. In fact, doctors have left states with strong "tort reform" to relocate to states with more favorable Medicare/Medicaid reimbursement. Although California enacted severe restrictions on victims' ability to recover, the number of California doctors is declining in relation to its population. California doctors blame low reimbursements, not lawyers and juries.

2. "Reform" doesn't lower insurance rates. Nevada recently enacted radical limitations on medical malpractice cases, but the two major insurance companies now say they won't reduce rates. This summer the largest Mississippi insurer notified doctors it would raise rates by 45 percent in 2003 regardless of "tort reform" legislation. In 1986 Washington state approved a comprehensive "tort reform" bill. Although Washington insurers said this law would reduce premiums by 25-30 percent, they asked for a rate hike in 1987.

3. Medical malpractice awards have remained steady, and accurately reflect the incidence of medical mistakes. The evidence contradicts the fabrication that jury awards are "skyrocketing." Medical malpractice costs, as a percentage of health care, are at an all-time low, 0.55 percent. In fact, medical claims paid by malpractice insurers average about $30,000, and have remained virtually unchanged over the last decade. Plaintiffs' victories have declined since 1992.

The multimillion dollar awards reflect catastrophic injuries, such as brain damage to babies who will require expensive care for the rest of their lives. Juries have also awarded large amounts to patients who face life-long, debilitating pain and suffering because of medical mistakes.

What the insurance companies don't tell you is that in 62 percent of the cases, juries award zero dollars. Why do they conclude that high awards are always mistakes, but zero dollar awards are never mistakes?

4. Lawyers don't cause medical errors or rate hikes, and don't reap "windfalls." Lawyers are convenient targets, but they're not the ones who inflict injury through medical negligence. Nor have they reaped the windfall profits.

The amount of time and money required to pursue a medical malpractice case is enormous. Moreover, the medical community makes it extremely expensive for lawyers to pursue meritorious cases. The largest insurer in North Carolina arrives at every mediation unwilling to pay a penny, even on strong claims.

In most medical malpractice cases, lawyers make nothing. They spend hundreds of hours and thousands of dollars to reap no financial compensation. Their reward in unsuccessful cases is putting up the good and noble fight for deserving victims. The picture of medical malpractice lawyers as rich fat cats painted by the "reformers" is a gross distortion. Any "fat cats" are the insurance companies which extracted exorbitant profits in an overvalued stock market. The market's collapse necessitated rate increases, not jury awards.

Doctors should -- and do -- make a good living. But we should be less concerned about their going to the poor house (they won't) than about protecting people harmed by avoidable errors.

There are fair, viable prescriptions for this illness. Insurance companies could impose rates that reflect risks. Approximately 75 percent of malpractice claims are associated with 15 percent of doctors. Safe drivers pay different rates than habitual drunk drivers. Why not impose higher premiums on physicians and hospitals with higher error rates?

Captive insurance companies and risk retention groups are also promising options. After Hurricane Andrew, insurers withdrew from flood insurance and state sponsored programs intervened. Similar solutions should be explored.

Medical negligence causes medical malpractice suits. Price-gouging, greedy insurance companies cause higher premiums.

Doctors should stop blaming lawyers and juries, and scrutinize the insurance practices which have poisoned the system. They should acknowledge their misdiagnosis and work toward prescriptions for a genuine cure."

Source: Charlotte Observer Sat, Dec. 14, 2002; GARY W. JACKSON Special to The Observer
Former Observer community columnist Gary Jackson is a trial lawyer in Charlotte.