Friday, November 1, 2013

Forbes article on medical malpractice

Here is a link to a new article in Forbes on medical malpractice. It mentions many issues that anyone who has been paying attention to the issues knows already but that it doesn't hurt to repeat.  (For more on those, click on the medical malpractice section of this blog and scroll down for the many posts on reports, studies and other sources that disprove the myths advanced by tort reformers).  The article is long; the section on medical malpractice reform starts on page 3.

For example, the article points out that the cost of defending malpractice claims and compensating victims is a minimal part of overall healthcare costs, something every report on the subject has confirmed.  The article also reminds us that only a small percentage of the possible legitimate claims result in filed complaints, that so-called “defensive medicine” is one big myth, that state tort laws have no impact on where doctors decide to practice and very little, if any, impact on doctors’ insurance rates.

There are two other points that merit mentioning.  The first one is also a point of constant contention in medical malpractice reform discussions: whether there is a problem with "frivolous lawsuits."  The answer, depends, of course, on how you define frivolous.  Tort reformers tend to define as frivolous any case that is won by the defendants or dropped by the plaintiffs.  According to some reports doctors and hospitals win approximately 11% of all med-mal lawsuits filed and about 46% of the cases are dropped by the plaintiffs before trial. Does this suggest an abundance of frivolous cases?

The other interesting point in the article is something I had not heard before.  The author argues that the shortening of the statute of limitations in some states (at urging of tort reform proponents) has resulted in more doctors getting sued. His reasoning is this: "as a way to stop the clock and preserve their rights, plaintiffs often include every conceivably liable doctor in the initial suit. But after more thorough investigation and discovery, plaintiffs recognize that many named parties did nothing wrong — and they drop the suit. In the meantime, the named doctors suffer the indignity and anxiety of having been included as defendants."  According to this reasoning, allowing plaintiffs lawyers more time to prepare the cases would result in a more accurate determination of who should be included as defendants in the case.

I guess, the argument makes sense, but it is not necessarily true in every case.  In many cases, it is not until discovery (after the case has been filed) that it can really be determined that a certain defendant should not be considered a possible tortfeasor.

The article also strongly criticizes the American College of Obstetrics and Gynecology, which it alleges, is an obstacle to patient safety.

The PopTort offers its own view of the article here.