Posted by Bill Sandweg on 20 April 2020.
Last month, I blogged on the alarmingly high rate of preventable medical injuries occurring in hospitals. The blog post was based on a well-designed study of randomly-selected Medicare patients discharged from hospitals over a one month period of time. The study was done by the Inspector General of the Department of Health and Human Services at the request of Congress. The study used a team of doctors and nurses to identify injuries which were preventable. The doctors found that almost 12% of all of the Medicare patients experienced a preventable medical injury. Most of those injuries were serious and some resulted in the death of the patient. Based on this study, and others, there can be no question that we have a significant medical malpractice problem in this country and that many people are hurt by medical malpractice each year.
So what is the response of the healthcare industry to the fact of widespread malpractice which injures and kills patients? “Malpractice claims and the fear of these claims are responsible for the dramatic rise in health care costs. We need more laws to prevent patients from suing when they are hurt or to keep down the amount they can recover.”
Last year, the group Public Citizen, a respected non-profit representing the interests of consumers looked at the role medical malpractice plays in health care costs. It found that, as usual hospitals, doctors and their insurance companies were misrepresenting the role of malpractice claims in rising medical costs.
Among the significant findings of the Public Citizen investigation were that malpractice claims and malpractice insurance premiums are at the lowest levels in history. The amount paid for malpractice claims and the cost of buying malpractice insurance represent the most obvious cost of malpractice liability. For years, these numbers have been going down, even as our population increases and the number of patients injured by malpractice increases as well.
There are a number of reasons why claims are going down. In the first place, the reason most people who are injured by medical malpractice or who lose loved ones to malpractice do not make claims is that they were never informed of the malpractice. They were either led to believe that the injury or death was just one of those things or they were deliberately lied to about what happened. They never pursued a claim because they never knew they had a claim to pursue.
A second reason relates to the great job the health care industry has done in perpetuating the myth of frivolous malpractice cases. Doctors and hospitals win 9 out of 10 of the malpractice cases that get tried across the country, at least in part because juries believe these claims are usually frivolous. Experienced malpractice lawyers know these figures. The high loss rate forces them to screen the cases they take very carefully. In my practice, for example, we turn down over 100 cases for every one we are able to take. I am not alone in being careful to select only meritorious cases with strong damages. This means that even when injured patients and their families try to bring a claim, only a small percentage of them can find a lawyer to represent them. Given the expense and complexity of these claims, it is almost impossible to pursue a contested claim without an experienced lawyer. The system forces qualified lawyers to involuntarily assist the health care industry by refusing to represent many patients who have been the victims of malpractice.
According to the health care industry, even if actual claims are down, doctors are so afraid of being sued that they practice “defensive medicine,” which drives up the cost of medical care. I have blogged about defensive medicine in the past. It is unethical and exaggerated. According to the Public Citizen review, its costs are relatively small, amounting to no more than 2% of our national spending on health care.
The idea that limiting patient rights will reduce health care spending or at least slow its growth has been rejected by actual experience. For example, in Texas, which has enacted strict limits on malpractice claims, the number of claims and the amounts paid on those claims has predictably gone down. What has not gone down, however, is the rate at which Texans are paying higher and higher medical bills. The rate of increase in medical spending in Texas exceeds the national average. If the arguments of the health care industry were valid, we would expect to see just the opposite.
Just as the sun rises everyday, we can count on seeing these discredited arguments made by the health care industry and its insurers in the coming months. The money they can make, if they are successful, is staggering. They find a ready audience in legislators eager to accept their sizable campaign contributions. The people left behind in all this are the patients whose rights are curtailed in the name of holding down health care costs. Who is going to look out for them?