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How Medical Malpractice Reform Could Save Lives

When my six-year-old daughter heard that I was going to write about President Obama’s speech to the American Medical Association in Chicago, she offered me this insight: “He’s not a doctor! He isn’t supposed to tell people what to do when they’re sick; he’s supposed to rule the world.”  Yet, regrettably, doctors do need his help and it was with great interest that on June 15, the medical community listened.

I suspect that my colleagues in Chicago are the only crowd to boo the President during a speech since his election, and I think that much can be learned by examining why this occurred.  Just moments before being booed, Obama received raucous applause when he acknowledged, “that some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That’s a real issue.”  Physicians in the audience then booed the next line, “I’m not advocating caps on malpractice awards which I believe can be unfair to people who’ve been wrongfully harmed.”  The President went on to offer a plan to help physicians avoid practicing expensive defensive medicine.  “We need to explore a range of ideas about how to put patient safety first, let doctor’s focus on practicing medicine, and encourage broader use of evidence based guidelines.”

I do not object to President Obama’s sincere and well delivered remarks to the AMA, but found some of them to contain trite platitudes.  Encouraging physicians to “put patient safety first, focus on practicing medicine and follow evidence-based guidelines” is like asking airline pilots to pay attention to safety gauges, fly their planes, and respect passengers. I found the admonition to follow evidence-based guidelines as a means to avoid medical malpractice claims a particularly naïve statement.  I’m not arguing against using guidelines, I just don’t see how guidelines will protect me from a lawsuit any more than the currently used standard-of-care.

I share the President’s opinion that any individual should have the option of remediation through the court system when wronged but large, punitive settlements change the way hospitals and physicians practice medicine and have resulted in an untold number of unnecessary surgeries as well as causing the actual death of many who never had their day in court.  Unreasonably large medical malpractice settlements often have consequences that reach far beyond the parties involved in the original suit. Follow the relationship between cerebral palsy and C-sections and you will understand my assertion.  In 1985, then trial lawyer John Edwards won a settlement of 6.5 million dollars against a hospital and 1.5 million dollars from an OB/GYN doctor arguing that if a C-section had only been done for an unfortunate child she would have been born without cerebral palsy.  This case set off a chain reaction of suits throughout the country, leading obstetricians to practice defensive c-sections. The United States currently has the highest rate of C-sections in the world, the most expensive obstetrical costs per birth, and when measuring infant mortality ranks 42nd out of 43 industrialized nations.

In 1970, six percent of births in the U.S. were done by C-section; today that number has risen to over 30% while the WHO recommended, in 2006, that the actual rate should be no higher than 15%. Yet, the last four decades have seen the cerebral palsy birth rates remain close to 2 per 1000 live births in the U.S. without change.   Considering that women are 4 times more likely to die during a C section than during a vaginal birth it becomes a simple and tragic mathematical exercise.  Consider that in Scandinavia the maternal death rate is 3 per 100,000 births while 13 mothers die per 100,000 births in the United States; unless you’re African American–then you count an appalling 34 dead for every 100,000 births.  Furthermore, once you have had a C-section there is a very good chance that all future births will be done the same way with an increased rate of hysterectomies, post-operative infections, blood clots, drug reactions, etc.

On the other hand, tort reform has resulted in major shifts in the physician workforce.  In 2003 Texas put a cap of a quarter million dollars on malpractice settlements for pain and suffering but did not place a limit on the actual economic loss suffered by a plaintiff.  The limit for a wrongful death case was set at 1.6 million dollars.  Since 2003 Texas has seen 18% more doctors filing for new medical licenses per year (30% in 2007) and by the end of 2007 there was a 6 month backlog for the medical board to begin processing new license requests. The increased number of physicians has helped to improve access to care. Medical malpractice reform is necessary to avoid the kind of collective defensive behaviors that, ironically, may not be in the best interests of patients.

In my next few posts, I plan to discuss various aspects of our broken healthcare system. It is imperative that we understand all of these problems to avoid making things worse. This will require a probing and honest evaluation of what is wrong today.  I also intend to discuss the President’s plans for reform and while I don’t agree with all of his plans, he has put forth many ideas that I do agree with.  The time for reform is here, action appears inevitable, and the moment to speak out is now.

Until next week, I remain yours in primary care,

Steve Simmons, MD


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3 Responses to “How Medical Malpractice Reform Could Save Lives”

  1. Ben says:

    Excellent post. Capping pain and suffering awards is an attractive option – especially as human sympathies seem to incline juries to use malpractice suits to transfer funds from “deep pockets” (i.e. hospitals/insurance companies) to injured/suffering patients regardless of the exact degree of causation or negligence.

    That said, if there is truly gross negligence, and a patient who would almost certainly have recovered is instead permanently crippled or severely injured due to physician actions that were undeniably careless or outside industry standards, it seems potentially unfair to limit awards (and punishment) to such small amounts (outside economic damages). Perhaps it it would be reasonable if we allow uncapped (or higher-capped) punitive awards as well, as those *should* be awarded purely based on the level of negligence rather than sympathy with the sufferer, it might do a better job of appropriately assessing penalties (perhaps this is how it should be in every industry, not just medicine). Also there should be clearer guidelines on what constitutes gross negligence (simply allowing the defense and plaintiff to present expert witnesses will skew the debate one way or the other – like giving equal time to creationism v evolution, etc).

    Of course, it might make sense to just move malpractice suits to specialty courts altogether. Standards of care and reasonable negligence etc are highly technical distinctions. What we want is for unavoidable errors, issues where causation is weak, and common/understandable errors to be relatively protected (i.e. OB example from the article), and for profoundly negligent behavior to be relatively unprotected. I speculate that these distinctions would probably be best determined by a panel of medical professionals.

  2. marcbnoland says:

    We need a doctor revolution to fix the system. It has to come from doctors. Please, we need you people!! The strike is simple ….”We doctors refuse to ever take a payment from a government institution, state or federal.” To get back doctors rights and open the free market, the check book has to be in the hands of patients. The needy that need food get food stamps, and it works. The buy food just like the rest of us. The government doesn't make the payment direct and tell the grocery stores that they want a 40% discount on milk. If they did, we would have a shortage of food in 10 years. It's basic economics of supply and demand.

  3. marcbnoland says:

    We need a doctor revolution to fix the system. It has to come from doctors. Please, we need you people!! The strike is simple ….”We doctors refuse to ever take a payment from a government institution, state or federal.” To get back doctors rights and open the free market, the check book has to be in the hands of patients. The needy that need food get food stamps, and it works. The buy food just like the rest of us. The government doesn't make the payment direct and tell the grocery stores that they want a 40% discount on milk. If they did, we would have a shortage of food in 10 years. It's basic economics of supply and demand.

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