A recent editorial in USA Today suggests that physicians are forced to practice "defensive medicine" to head off lawsuits. The editorial suggests that lawyers are the only ones benefiting from the current civil justice system:
The liability system is too often a lottery. Excessive compensation is awarded to some patients and little or none to others. As much as 60% of awards are spent on attorneys, expert witnesses and administrative expenses.
The editorial is completely off the mark and shows, to be honest, an utter lack of understanding for the way a medical malpractice case weaves its way through the civil justice system.
Consider that in many states an expert report must be filed prior to or very early in the litigation process. That means that a physician expert–usually one board certified in the same specialty as the defendant physician–has reviewed the case and found it to be meritorious.
Once an expert certificate is filed, some states still require early mediation in some manner. What the USA Today piece fails to appreciate is that even in those clear cases of negligence, doctors and insurance companies refuse to settle cases. Many insurance companies have made the "business decision" that it is cheaper to litigate even meritorious cases with the hopes of a jury finding in their favor.
After early mediation or arbitration, the case then goes through the very expensive and time consuming discovery process. Plaintiffs often pay as much as $50,000 to get their case through discovery and ready for trial. That is simply expenses and doesn’t include attorney time.
When a case does go to trial and a verdict is returned for a plaintiff, a judge has the ability to reduce any award the jury gives. Most states though prohibit a judge from raising a verdict. In many states, as in West Virginia, legislatures have capped damages than can be awarded.
The suggestion that lawsuits are forcing doctors to practice "defensive medicine" and thus raising the cost of health care simply chooses to point the finger for high health care costs at attorneys. It is surprising that USA Today would buy into the Chamber of Commerce’s story hook, line and sinker.
Of course, there are two sides to every story:
The Institute of Medicine reports 98,000 people die every year from preventable medical errors, costing the nation $29 billion. Medical errors are the nation’s sixth leading cause of death, killing more people annually than auto accidents or guns.
But doctors claim they are forced to run more tests to protect themselves from lawsuits, which leads to higher health care costs. This has been debunked. Studies from the Congressional Budget Office and Government Accountability Office have all cast doubts on the existence of defensive medicine, stating any savings from reducing it would be "very small." Doctors run more tests because it benefits patients, not because of liability concerns.
And that supposed influx of "frivolous" claims? A study from Harvard’s School of Public Health found 97% of medical malpractice claims had merit, proving only those with real injuries seek any recourse.
It is expensive to litigate a medical malpractice case. But instead of focusing on the costs that must be spent so that those with meritorious claims (97% according to Harvard) can be compensated, USA Today suggests that lawsuits ought to be curbed to stop defensive medicine. Perhaps the real emphasis should be on stopping the medical errors that take near 100,000 lives a year.
Both an Emory School of Law graduate and MBA graduate of Goizueta Business School at Emory, Chris Nace focuses his practice on areas of medical malpractice, drug and product liability, motor vehicle accidents, wrongful death, employment discrimination and other negligence and personal injury matters.