Wednesday, September 30, 2009

Counterpoint on Tort Reform

From a close friend, Mike:
"I understand introducing tort reform for medical malpractice is an important issue for you (hell me too, my [relative hates] the high premiums for practicing [specialty])

Let me give you a little background, however, on how exactly doctors are held liable / what the damages can be

Most doctors are sued under common law negligence - to prove negligence you need to show four things the doctor (2) breached his (1) duty which (3) caused (4) damage to the patient and show all those elements by a preponderance of the evidence. 

In terms of element 2, the doctor only breaches his duty if he violates the custom of the profession, not if a bad result occurs.  Obviously, it is going to seem very likely that something did go wrong if a poor result occurs but that is hindsight bias for you.  So, honestly, as long as accepted procedure is followed, doctors cannot be held liable.  Further, the injury must have been caused by the doctor (how do we know it wasn't some infection or some other injury?).  If a patient comes back three years after a surgery claiming malpractice, she is going to be hard pressed to prove that something else didn't happen in the meantime that is a more direct result of her injury.  Finally, I know we see huge awards by jury trials, but punitive damages are rarely given out except in cases of gross and wanton negligence.  I doubt that many malpractice cases are results of "gross" negligence.  More likely, something went wrong and people want answers.  Damages are limited to lost wages, pain and suffering (obviously, this could be very high, but they have to prove the pain and suffering).  While lost wages seem like they can aggregate quickly, if an accountant loses a finger due to negligence of a doctor, he can still function at his job and he hasn't really lost the ability to be an accountant (his damages would likely be low). 

So, in reality, malpractice is not really a ticket to fortune for the patients, but a way to "make them whole" which is exactly the goal of tort law.  Tort law is concerned about corrective justice, and there really is no other way than money to make up for horrific injuries and accidents.  There are some states which cap the damages award.  But if I am a skilled laborer and I lose the use of my arm and still have many years left in my working life, that cap really won't do me much good. 

Perhaps some other ideas for the legislature to consider are to eliminate jury trials for malpractice claims.  Juries are always going to be more sympathetic to the victim than the well educated doctor and deep pockets of the insurance company.  A judge with long experience will be able to weed out the phony from the legitimate claims and be less biased.  Another idea can be to educate doctors more thoroughly on personal injury law to make them more aware of what their potential liabilities are.  Finally, the local legislatures could create a specialized court (like traffic court) to provide a forum where these claims can be heard, saving some time and expense that would be wasted during a general trial that needs to educate the judge and doctor on extremely complicated medical knowledge. 

Or, the legislature could just make it more difficult for doctors to breach their duty - that would create a "barrier to entry" so many claims would be barred from being heard.  Remember, negligence is common judge made law - the legislature can preempt at any time. 

Anyway, long message but I hope this helps"
Interesting point. My problem with tort reform is less the damages and more the problems you mention with juries - juries overwhelmingly tend to decide based on patient outcome, not doctor actions. I agree with you fully on specialized health courts; whether or not they should involve a jury or some outside party is questionable, given the potential for inconsistencies between judges. Punitive damages are also a problem, to some degree, for  the same reason, so punitive damage payout caps aren't necessarily a bad idea.
Your point on non-punitive payout caps is an interesting one that I hadn't thought about. The general goal of tort reform is to let a doctor avoid defensive medicine, so I suppose you'd have to structure it all in a way that still lets the patient "be whole" in the case of an actual doctor error while still letting doctors practice the best way they know how, instead of the most likely-to-avoid-prosecution way they know how. Easier said than done.

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