The Medical Liability Crisis

Author: 
Kyle McCammon, DO, FAAFP, FACEP
Article Type: 
Feature Article
Issue: 
Fall 2002
Volume Number: 
7
Issue Number: 
3

Introduction

Many incremental mandates during the past decade have brought about changes in the way medical care is delivered. Many of the changes have resulted in physician dissatisfaction and frustration with the practice of medicine. Physicians have become increasingly concerned with the increases in their overhead expenses, the reductions in reimbursement for the medical services they provide, the intrusion of third-party regulatory networks into the clinical decision-making process, and the threat of medical malpractice litigation.(1)

For some physicians, the rewards of practicing medicine have finally become outweighed by its many outside negative influences. For example, a recent survey of West Virginia physicians revealed that more than 40 percent were considering moving out of West Virginia and more than 30 percent were thinking of quitting medicine altogether. For those who may be contemplating becoming physicians, the idea of committing to the demands of a medical career has become less desirable. According to the West Virginia Board of Medicine, West Virginia has lost more than 300 physicians in the past few years and applications to the state's allopathic medical schools are down by as much as 40 percent. Given the fact that the majority of counties in the state of West Virginia are already designated as health professional shortage areas, it appears that a crisis situation may occur in the very near future.(2)

This article will address one of the major issues in the practice of medicine that has such negative effects on physicians, patients and society that it has become a significant contributing factor to the mounting crisis situation --- the medical liability crisis.

The Need for Medical Liability Reform

The statistics in West Virginia illustrate the scope of the problem with our current medical liability system. West Virginia has one of the highest medical malpractice costs in the nation. Medical Assurance, one of the state's leading malpractice carriers, reports a significantly greater frequency of lawsuits against West Virginia physicians as compared to other states in which they operate. In the past five years, Medical Assurance had 385 lawsuits filed against their insured physicians. Of these lawsuits, 330 (85 percent) were either dropped, dismissed, or received a jury defense verdict. The average cost of defending each lawsuit was more than $45,500. The total liability cost (defense costs plus plaintiff payouts) was more than $115,000 per case. Seventy percent of defense costs and 28 percent of all liability costs occurred in defending non-negligent physicians. The average payout for each plaintiff verdict of $490,000 was more than two times the national average. This amount was primarily due to a greater frequency of "shock losses" or jury verdicts in excess of $1 million in West Virginia as compared to other states.(2)

As a result of the state's medical liability problem, West Virginia physicians have seen up to 35 percent increases in their medical malpractice insurance premiums. West Virginia obstetrician-gynecologists are now paying on average more than $80,000 per year for medical malpractice insurance.(2)

Commenting on the medical liability crisis in West Virginia, a hospital administrator said, "This is the scariest thing I have come up against. It's kind of a double whammy, because we lose the best doctors on the top side and then we can't recruit doctors on the bottom side."(3)

The problems with the medical liability system in West Virginia are not an isolated aberration. Even though the United States has the world's most expensive medical liability system, it functions in an unjust and inefficient manner. Several factors are responsible for these problems. Medical advances have increased the opportunity for error in a climate where negligence is often assumed if an outcome does not meet with expectations. The contingency fee system is an impediment to the pursuit of justice because the potential for a windfall of profits going to attorneys provides incentives for them to bring frivolous claims to coerce settlements or to embellish meritorious ones to increase plaintiff (and attorney) payments. Many medical malpractice lawsuits are unjustified and about half of all insurance costs are spent defending non-meritorious claims.(4) Fear of overly sympathetic juries is also a factor. Even though some of the successful cases may actually be non-meritorious, they are still settled by insurance companies because of their potential to result in high plaintiff damage awards.(1,5,6)

One study evaluated more than 8000 closed malpractice cases. Care was defensible in the majority of cases. Plaintiffs won 43 percent of cases. However, only 51 percent of all payments went to plaintiffs who had actually suffered negligent injuries. One study has also shown that the nature of an injury and the severity of disability predict plaintiff verdicts and payment amounts, regardless as to whether negligence occurred.(1)

The Harvard Medical Practice Study sampled over 30,000 patient discharges from New York hospitals in 1984 to evaluate malpractice claims and their outcomes as they related to the occurrence of negligent injury and adverse events that were unrelated to negligence.(7-10) The incidence of negligence was 1.0 percent. Negligence accounted for 27.6 percent of the total adverse events. Adverse events occurred in 3.7 percent of all hospitalizations. Overall, 13.6 percent of the total number of adverse events resulted in death. Fifty-one percent of the deaths were attributed to negligence. Overall, 0.5 percent of patients died due to negligence.(7,8)

The Harvard study identified a total of 47 malpractice claims. Overall, only 17 percent of claims were definitively related to negligence, 28 percent were questionably related to negligence, and 55 percent were definitely unrelated to negligence. Even though the plaintiff received payment in 45 percent of these cases, only 24 percent of the total payments were related to negligence.(10) The Harvard study also showed that actual malpractice claims occurred much less frequently than did negligence, i.e., there was only about a one in fifty chance that negligent injury would result in a malpractice claim.(9)

These statistics, facts and study results have shown that the legal standard of medical negligence performs poorly in medical liability litigation and the current system fails to provide a fair remedy for medical mistakes.(11) Medical malpractice is legally defined as patient injury that directly results from physician negligence. Physicians should not be liable for injuries that occur during the course of treatment that are not due to negligence.(12) The problem with the current medical liability system is that it cannot adequately make this important distinction. In fact, medical malpractice lawsuits are most frequent when no negligent injury occurs. Therefore, the current system compensates many who have not sustained a negligent injury. Conversely, since claims are rarely made after negligent injury occurs, the current system fails to compensate many patients who are injured. Since there is little correlation between the filing of lawsuits and negligent care, the outcome of medical malpractice claims more resembles a lottery than the administration of justice.(13) This adds enormous costs to the medical liability system. Furthermore, the current system does not reduce the occurrence of negligence. It threatens access to medical care. It benefits lawyers excessively at the expense of society and injured plaintiffs.(11)

Another problem with the current system is that the emotional trauma of being a defendant physician in a medical malpractice lawsuit, regardless of the outcome, can be devastating. In fact, physicians may respond in such a consistent emotionally dysfunctional manner that the response has become known as the malpractice stress syndrome.(14) Furthermore, sued physicians are also more likely to stop providing certain services, to practice defensively, to think about early retirement, and to discourage others from entering the medical profession.(1) Moreover, the fact that negligence may often not "come to light" is no justification for the demoralization and punishment of non-negligent physicians in an adversarial medical liability system.

Health Care Liability Alliance: General Principles of Medical Liability Reform

Given the many inherent problems with the current medical liability system, physicians have continued to push for reforms.(15) It is physicians who can approach this cause from the moral high ground since attaining some measure of fairness and restoring justice for the medical profession, patients and society is the goal.(6)

Many groups, associations and individuals have become advocates for medical liability reform. The Health Care Liability Alliance (HCLA) is a coalition of physicians, hospitals, insurers, and other medical organizations and individuals who believe that the current system for resolving medical liability disputes is a national problem that demands a national solution.(11) The HCLA position report concludes that medical liability reform must contain four key principles in order to ensure improvement in the system.

First, patient safety must be promoted. The key to patient safety is not trial lawyers and medical malpractice litigation. Rather, risk management and quality improvement programs are more effective in improving patient safety and they provide a preferable alternative to litigation.(11,16-19) These programs decrease the incidence of treatment complications, promote better outcomes and improve preventative health care maintenance.(11) Many hospitals now have full-time risk managers who research, investigate and implement systems changes, such as Medteams Projects, which are designed to bring about a reduction in medical errors.(20,21) Agencies now exist that develop and disseminate information pertaining to medical malpractice and its prevention and practice guidelines. The increased emphasis on quality outcomes, productivity and patient satisfaction has resulted in an increased oversight of physicians' practices and conduct through risk management and quality assurance committees and peer review activities. This increased centralized management surveillance has caused more physicians to become better educated on the reasons why patients sue, anticipating and effectively managing high-risk clinical situations, effective communication and documentation techniques, and practice guidelines in order to reduce malpractice risk.(6)

Second, the focus must be on fair compensation of injured patients. Patients who have been injured by negligent care should be entitled to collect full economic damages (i.e., full compensation for past and future medical expenses and future earnings). Our current system, where only 43 percent of the dollars spent on medical liability litigation reach the injured patients serves lawyers better than patients.

Third, the liability component of medical care costs must be contained. The high cost of the medical liability system is inevitably passed on to consumers. This is further exacerbated by the increased costs associated with defensive medicine.

Fourth, access to medical care must be promoted. The high cost of medical liability insurance premiums and the threat of litigation have reduced access to care. The federal government has attempted to solve this problem by enacting the Federal Tort Claims Act (FTCA). Under the FTCA, the Secretary of Health and Human Services can designate community health centers, its employees and physicians as federal employees. Once "deemed" as federal employees, they may be sued for medical malpractice only under the provisions of the FTCA, which does not allow punitive damages, does not provide a jury trial and caps attorney fees. The existence of the FTCA proves that Congress has recognized that the current medical liability system has a negative impact on medical care.(11)

Medical Injury Compensation Reform Act: The Precedents for Reform

Many of the medical liability reform proposals have originated from the contents of the Medical Injury Reform Act (MICRA) that passed in the California state legislature in 1975. The MICRA legislation contained many provisions: 1) a $250,000 cap on non-economic damages, including pain and suffering; 2) a limited and graduated contingency fee scale for lawyers; 3) a fair and realistic statute of limitations; 4) a system of periodic payments of future damages for awards in excess of $50,000; 5) the disclosure of collateral source payments to allow juries to consider evidence of other sources of payments (i.e., worker's compensation, disability or auto insurance) as they relate to the damages sought by the plaintiff; 6) a 90-day advance notice of a claim to foster settlements outside the court system; 7) an Alternate Dispute Resolution (ADR) panel to provide for voluntary binding arbitration outside the judicial process; and, 8) the authority for increased internal monitoring and disciplining of physicians.(6,22)

Medical liability reform based on MICRA principles has several benefits. Under MICRA, more of the net amount of damage awards goes to the injured patients. MICRA also provides for more timely compensation of injured plaintiffs. MICRA makes it more difficult for lawyers to bring non-meritorious cases, holds down litigation costs by increasing out-of-court settlements and preventing huge unwarranted damage awards, and helps to raise professional standards and quality of care.(23)

Data shows that meaningful medical liability reform, as pro-vided in MICRA, does ameliorate medical liability costs, and thus helps provide patients the access to care they need at reduced medical costs without sacrificing quality of care. According to the Congressional Budget Office, medical liability reform would result in a savings of $1.5 billion over ten years.(24) According to a Stanford University study, medical liability reform has lowered medical care costs with no adverse impact on health outcomes.(25)

Health Care Liability Alliance: Positions on Medical Liability Reform

The HCLA supports a comprehensive package of meaningful and substantial medical liability reforms that are based on the provisions in MICRA.(11,26)

The HCLA supports a $250,000 cap on non-economic damages. Non-economic damages are subjective and difficult to quantify since they attempt to assign a monetary value to things that are intangible.

Under the rule of joint and several liability, a defendant that is responsible for a small percentage of the total fault may be held accountable for the entire award. HCLA supports reform of joint and several liability for non-economic damages so that the portion of damages defendants pay is based on their degree of fault.

The HCLA supports reform of the collateral source rule to stop double recovery of damage awards and the fraud and abuse that it generates.

The HCLA supports periodic payment of future damage awards on amounts over $50,000. This allows for more stable and consistent malpractice insurance premiums and assures proper management of future funds for injured plaintiffs.

To establish a balance between the rights of those bringing claims and the rights of those defending themselves, HCLA supports a uniform statute of limitations. The statute would set a standard rule that claims must be filed within one year from the date an injury is discovered, but provides an outside limit of three years from the date the injury occurred.

The HCLA supports a reasonable limit on punitive damages and a defense to punitive damage claims based on compliance with established standards of care; ADR methods to encourage out-of-court settlements and reduce litigation; and a "federal floor" concept of state preemption. That is, HCLA supports a system with federal minimum standards based on basic reform provisions that have already proven to be effective.(11,26)

The AMA and other physician organizations support the reforms that are endorsed by HCLA and are contained in MICRA.(27-29)

As of 1996, twenty-two states have enacted some limit on non-economic or economic damages. A limit on attorney fees has been enacted in 12 states. Mandatory or discretionary rules on collateral source payments exist in 28 states. Rules that address the periodic payment of future damages have passed in 28 states.(11,30,31)

As the current medical liability crisis in West Virginia would indicate, West Virginia has enacted very little reform measures. West Virginia has no limits on attorney fees, no reform of the collateral source rule, and no system for periodic payments of damage awards. West Virginia also has no ADR panels, hospitals can be found liable for the malpractice of its non-employed physicians, and if a defendant physician is found responsible for more than 25 percent of all the joint defendants' negligence, he or she is jointly and severally liable for the entire judgment. The $1,000,000 cap on non-economic damages in West Virginia is four times more than the proposed standard.(31,32)

Other Medical Liability Reform Proposals

The medical liability reform proposals that are endorsed by HCLA provide for immediate relief to physicians and improve a poor system. However, many advocates for medical liability reform argue that more fundamental changes will be required to eliminate the system's inherent flaws.29 The creation of a new medical liability system in the form of a no-fault liability system or an enterprise liability system has received the most support.

A no-fault system would not require litigated proof of physician negligence in order for injured patients to receive compensation. An established list of adverse events would be used to determine whether or not an injury qualified for compensation. An administrative body that operates outside the judicial process would oversee injury disputes and determine the amount of awards to be granted. There would be no payments for non-economic damages.

No-fault system opponents argue that it would be too costly and that compensation for all injured patients would serve as a disincentive to treat high-risk patients. The presence of some injuries may also be difficult to prove since many adverse events are caused by an underlying medical condition and are not due to the actual medical care received.

Under an enterprise liability system, physicians would pay the costs of their liability directly to the "enterprise," i.e., a hospital or health maintenance organization (HMO). In return, the enterprise would represent the physician and be the lone defendant in medical malpractice lawsuits. Physicians would be entirely removed from the litigation process. The enterprise would be involved in overseeing the medical care provided by its physicians.

Opponents of enterprise liability point out that it would only function in an integrated managed care system. Many physicians feel that enterprise liability would subject them to even more controlling regulations by a hospital, HMO or governmental bureaucracy. Opponents argue that this system would create an incentive for liable organizations to conceal injuries and avoid treating high-risk patients or try innovative procedures.(29)

Two other proposals to bring about long-term changes in the medical liability system that have gained some interest include elimination of contingency fees for attorneys and adoption of a rule whereby the losing side in litigation pays the court costs and attorney fees. Proponents argue that until these changes are made, trial lawyers will continue to enrich themselves at the expense of the rest of society.(6,15)

The Legal System and Medical Liability Reform

The public, medical care sector and government share common goals of establishing a medical liability system that provides for the resolution of claims in a fair, cost-effective and timely manner, deters negligence, prevents injuries, fairly compensates patients, and provides relief to physicians. The current system is not working well for physicians and patients. Only trial lawyers benefit from the current system, and they stand as a well-funded formidable roadblock to medical liability reform.(33)

Perhaps this is why the greatest opponent of medical liability reform is the Association of Trial Lawyers of America (ATLA) and attorneys themselves. Attorneys are the ones who benefit most from the current adversarial, inefficient and expensive system in which over half of the dollars awarded never find their way to the injured party. Therefore, attorneys would have reason to fear any new system that would be fair to both patients and physicians. In fact, not only does the ATLA actively lobby against medical liability reform, it operates a constitutional challenge program as their antidote to medical liability reform legislation that has already been enacted.(34)

In defending the current system, lawyers promote the myth that it gets rid of the "bad apples" in the medical profession. One West Virginia attorney said, "Physicians who have actually left the state have not left because of the high cost of malpractice insurance, rather they have left because they have been sued a lot --- and for good reason. We are better off without them since the system has weeded out those physicians doing more harm than good."(35)

In reality, "bad doctors" have little to do with the overall scheme of the litigation process.(13) It is the patients' underlying condition and the inherent risks of required treatments, not differing levels of physician competence or avoidable medical errors that is reflective of the rates of adverse events and lawsuits.(36)

Lawyers argue that the proposals for medical liability reform would be unfair to victims. Another West Virginia trial attorney stated, "I never cease to be amazed how effective the medical industry and the insurance industry is in 'snowing' and bamboozling the American people [when they argue for medical liability reform]."(37) Lawyers state that medical liability reform would only serve physicians by alleviating the pain of being sued and losing a case without preventing the occurrence of medical malpractice.(18) The past-presidents of the West Virginia Trial Lawyers Association (WVTLA) and the ATLA have stated, "Reform carries potential danger for the thousands of Americans who are killed and maimed each year by medical negligence. Several reform measures would restrict an injured consumer's right to hold a negligent provider fully accountable. The medical and insurance industries are attempting to shift the responsibility for injury from the wrongdoer to the party who can least afford to bear it --- the injured consumer."(38)

Lawyers argue that no limits should be placed on victims of negligence and that a cap on non-economic damages would only result in injured people being victimized a second time by having their rights limited. Lawyers state that a cap on non-economic damages is discriminatory because it is utilized to increase the total amount of awards going to plaintiffs (and themselves) who have lower punitive economic damages.(39)

In reality, the cap on non-economic damages affects only a small percentage of medical malpractice lawsuits that receive plaintiff verdicts. However, the few lawsuits that result in unwarrantedly high non-economic damage awards have a significant impact on the total amounts of damages paid. Furthermore, limitless non-economic damages foster fraud and abuse of the medical liability system. When a plaintiff and the contingency fee attorney sense the possibility of a windfall on non-economic damages, they are much less likely to settle. Conversely, they can also use the uncertainty of a possible high non-economic damage award as leverage to settle a case, irrespective as to whether or not negligence occurred. It is not surprising that caps on non-economic damages have been shown to be the single most effective reform in containing medical liability insurance premiums.(11,26)

Lawyers point out that the rule of joint and several liability is designed to protect the victim from the possibility that any of the guilty parties would be unable to pay, thereby leaving the victim less than fully compensated. They state that an innocent victim has more rights than a defendant who is at fault in causing harm to the victim.(40)

In reality, the joint and several liability rule holds each and every defendant liable for the entire amount of damages, regardless of that defendant's contributing involvement in the plaintiff's injury. This rule leads to a search by plaintiffs' attorneys for "deep pockets" and to a proliferation of lawsuits against those who are minimally liable or not liable at all. This serves as an incentive for consulting physicians to avoid certain high-risk cases even when their expertise is truly needed.(26)

Lawyers argue that the contingency fee is meant to be the "poor man's key to the courthouse." They state that many people would have very little chance to seek redress without the risks a trial lawyer is willing to take on a contingency fee basis. Lawyers blame physicians and medical malpractice insurance companies for purposefully running up lawsuit expenses by overzealously defending claims.

In reality, the contingency fee provides incentives for lawyers to be primarily interested in potential "big payout" cases, thus making it more difficult for most potential plaintiffs to obtain access to the legal system.(26) This incentive also fosters fraud and abuse by encouraging lawyers to take cases with sympathetic plaintiffs even if there was no negligent care. Limiting contingency fees or placing it on a "sliding scale" would also serve injured patients by allowing them to keep more of the money they are awarded.

Lawyers argue that periodic payment of future damages on a schedule over time as opposed to in a single lump sum is unfair to plaintiffs. However, under periodic payments, the patient still receives full payment for any past or present damages in a lump sum at the time of settlement. Periodic payments provide a method for the injured patient to receive more of the award and it ensures that the money will be available for future needs. Periodic payments also have a stabilizing effect on medical liability insurance premiums.(26)

Lawyers argue that elimination of the collateral source rule relieves the negligent defendant of their responsibility to the victim. Elimination of this rule would actually serve to close the opportunity for plaintiffs and their attorneys to receive unwarranted hidden awards through double recovery of payments.(26)

Lawyers argue that defensive medicine is a myth.(41) In fact, the past-presidents of the WVTLA and the ATLA stated that, "Defensive medicine...has now been exposed as just another imaginary bogeyman."(38) Lawyers argue that defensive medicine is difficult to adequately define and is impossible to quantify. They argue that defensive medicine is just good medicine. They state that physicians get sued for omitting routine care, not for failing to provide extraordinary care or unnecessary tests or treatment.(41)

In reality, the threat of litigation affects the everyday decision-making process of practicing physicians. In response, many physicians do practice defensive medicine. Legal considerations often supersede medical judgment, resulting not only in more tests, but also in more false positive results that lead to still more tests and more procedures.(42) This results in increased costs as well as increased numbers of adverse events. In attempts to avoid liability, physicians now pass off more of their patients to colleagues with no resulting net benefit in patient care outcomes. In its positive form, defensive medicine may account for as much as 10 percent of total medical care costs.(1) This amounts to an estimated cost of $36 to $60 billion per year.(13,43) Defensive medicine also costs society when it is seen in its negative form, i.e., as among doctors who have stopped delivering babies. Now more than ever, increasing malpractice insurance premiums and the threat of liability have caused physicians to stop providing certain services or to abandon their practices altogether.(44)

Lawyers argue that the only crisis surrounding malpractice is malpractice itself.(45) They routinely cite the Harvard study as evidence to attest to this fact. Lawyers note that when the results of the Harvard study were extrapolated to the total number of patient discharges from New York hospitals in 1984, it was estimated that in New York alone there were 27,179 injuries, including 6895 deaths and 877 cases of permanent total disability that resulted from negligent care.(7-9) When these statistics were further extrapolated nationwide, it was estimated that up to 98,000 deaths resulted from negligent care. Lawyers also point out that the Harvard study showed that malpractice claims rarely occurred after a patient sustained a negligent injury.(9) They argue this "tort gap" is evidence that the real problem is not that there is too much medical malpractice litigation, but that there is too little. Lawyers argue that the existence of the "tort gap" refutes the assertion that there are too many frivolous cases.(36)

On the other hand, the Harvard study also showed that only 17 percent of patients who filed medical malpractice lawsuits had definitely received negligent care. Furthermore, almost 20 percent of the malpractice claims that were filed did not even involve adverse events. Half the cases involving adverse events but no negligence were settled in favor of the plaintiff.(10,36)

The Harvard study showed that the current medical liability system does not adequately serve patients or physicians. This finding, especially when coupled with lawyers' arguments against medical liability reform, should cause society to take notice of the legal professions' problematic role in the current system.(7-9,36,46,47)

New Facts on Medical Errors

Further analysis of the Harvard study reveals that patients with advanced age and with complicated illnesses requiring high-risk interventions were the ones who were most likely to sustain injuries. In most patients, adverse events were neither preventable nor predictable. In many other patients, adverse events were predictable, yet unavoidable effects of necessary treatments. The study did not attempt to differentiate between adverse events that were actually under the control of physicians versus those that were related to a "systems" problem.(7-9,36)

The reviewers who conducted the Harvard study found that they frequently disagreed as to whether or not the presence of an adverse event was related to negligent care. They noted that the standard of care is often not well defined and may be susceptible to considerable variation in interpretation.(7,36)

A more recent study conducted in Colorado and Utah showed that progress in reducing the numbers of medical errors is being made. The study found that adverse events occurred in 2.9 percent of hospitalizations and that 6.6 percent of adverse events led to death, as opposed to the Harvard study findings of 3.7 percent and 13.6 percent, respectively. When the results of the Colorado-Utah study were extrapolated to the number of admissions in United States hospitals in 1997, it was estimated that at least 44,000 deaths occur each year as a result of medical errors, as opposed to the Harvard study findings of 98,000 deaths. These figures were published in the Executive Summary of the report "To Error Is Human: Building a Safer Health System," that was released by the Institute of Medicine in 1999.(48)

The reduction in the numbers of deaths due to medical errors may actually be much lower than the Colorado-Utah study suggests. A new study estimates that a more accurate estimate is that 5000 to 15,000 patients die in hospitals each year due to preventable medical errors. This study found that when the state of health and prognosis of each patient was taken into account, in only 0.5 percent would death not have been the likely imminent outcome even if optimal care had been provided. This represented approximately one preventable death per 10,000 admissions to the study hospitals.(49)

These new facts regarding medical errors led the authors of the new study to conclude: "The previously reported statistics on deaths due to medical errors are probably unreliable and have substantially different implications than has been stated in the media and by others."(49-51)

The Public and Medical Liability Reform

The public has a vested interest in medical liability reform proposals that are designed to reduce medical errors, improve the frequency of justified compensation and protect physicians' rights. Indeed, nationwide polls show that an overwhelming majority of Americans do support common sense medical liability reform. More than 70 percent of respondents, while favoring measures to allow full payment for lost wages and medical expenses, support reasonable limits on non-economic damages.(52,53)

Unfortunately, some of the public and their representative organizations have been misled by attorney arguments against the need for medical liability reform. For the most part, attorney rhetoric has successfully resonated amongst some of the public because it has changed the focus of the question of medical liability reform to an emotional argument of "us" (the lawyer who represents justice and protects society) versus "them" (the physicians who are incompetent). For example, the past-coordinators of the West Virginia Center for Patients' Rights and the West Virginia Citizen Action Group have stated, "The only thing that will stop malpractice suits is to end medical malpractice."(54) One of them goes on to state that, "Medical malpractice prevention, not the limitation of victims' rights, should be our goal." These statements reveal that some people hold onto the false notion that the current system protects victims' rights and that medical liability reform would limit victims' rights. This also shows that some people do not understand that most medical malpractice lawsuits are not definitively related to adverse events due to negligence.

Physicians and their representative organizations must realize that attorney arguments against medical liability reform are formulated in such a way as to play into the public's understandable tendency to find culprits, impose punishment and extract revenge. As a result, attempts by medical professionals to foster a more strident public push for medical liability reform may be perceived as self-serving if physicians do not show that they are also making a visible commitment to improve patient safety.(55)

Therefore, an important counter-argument to stress to the public is that improving patient safety and medical liability reform actually go hand-in-hand. Under the current system, the naming of victims and villains makes for good headlines and wins large verdicts, but rarely advances the goal of reducing medical errors. The current system fosters a culture of blame and punishment that serves to drive errors underground where they go unreported, leaving the system unchanged and the errors recurring. Medical liability reform would help to change the focus of medical errors from the "who" to the "why," leading to an increased emphasis on systems rather than people. This would provide for a new emphasis on evaluating the multi-factorial nature of errors and help to foster the creation of new systems designed to make it more difficult for errors to occur.(21,56,57)

Conclusion

In reality, it seems that medical liability reform may not occur until attorneys recognize that they also are part of the problem. In many states lawyers can initiate a medical malpractice lawsuit without investigating its facts or merits. The legal system does not penalize attorneys for "gambling" on claims of questionable merit or for suing first and asking questions later. Instead, allegations can be merely accepted as fact and then be further embellished by attorney rhetoric. Clearly, the current system promotes the interests of plaintiffs' attorneys over the interests of everyone else.(13) Perhaps this is so because for attorneys, the medical liability system is more about maintaining power than it is about restoring justice.

The need for medical liability reform is clearly justified. The inequities of the current system have been identified. A consensus on the means by which to achieve the objective of reforming the medical liability system has been reached.

The roadblocks to medical liability reform have also been identified. It appears that in order for substantial medical liability reform to occur, society must diminish the current role and influence of the legal profession. In order for this to be accomplished, society must begin to more closely examine the reasons, and call into question why, our medical liability system continues to function in its current manner. In the meantime, many victims of medical negligence will continue to go unrecognized and uncompensated, many physicians will continue to be unjustly accused of negligence, and society will continue to suffer at the expense of profiteering attorneys.

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Dr. McCammon is an emergency medicine physician in Clarksburg, WV, and a fellow of the American College of Emergency Physicians and the American Academy of Family Physicians. His e-mail is kmccammon@prontomail.com.

Originally published in the Medical Sentinel 2002;7(3):79-85, 104. Copyright ©2002 Association of American Physicians and Surgeons.

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