Medical Malpractice Litigation and Reform

Medical Malpractice Litigation and Reform

Abstract

The entirety of this is based around the costs of defensive medicine vs. Tort Reform to determine whether federal reforms would significantly decrease health care costs nationwide. Defensive medicine includes extra elaborate tests and procedures ordered by physicians to reduce alleged threats of medical malpractice liability. The practice is frequently rumored to increase health care costs, on top of the hundreds of thousands of claims that happen every year. Capping malpractice payments has been introduced as one method to dropping the development in premiums. It has been found that payments in states that cap awards are 17.1 percent lower than in states that don’t have any caps. However, it is still in question whether these are real resolutions to the problem and if they encourage the goals of the U.S. liability system.

Introduction

The first Medical Malpractice case that can be found on record was Stratton v. Swanlond in 1374. [1. First Recorded Malpractice, 1828] The surgeon tried to fix a significantly injured hand on a woman who came to him as a last resort for her injury. The patient later sued the surgeon stating he had overly promised to heal her for a reasonably agreed upon price (Contract) but after her surgery, her hand was not fixed at all. The lawsuit was ultimately thrown out in the end for a few written discrepancies and no actual proof of negligence took place. After this instance, the judge set up rules to follow in any new cases that would come up, which are still somewhat in place today. He stated that we should hold physician’s accountable to their actions, especially when foul play is apparent; however, if the physician practiced everything appropriately, he/she would not be responsible even if they things did not go as planned or there was not a cure to something. [1. First Recorded Malpractice, 1828] The first real medical malpractice lawsuit in the United States did not occur until 1794, where the patient’s disgruntled husband claimed that a surgeon operated on his wife in an incompetent and harsh manner which ended up in her losing her life. The defendant also went as far as to try and sue for the surgeon stating everything would go as planned and he would operate expertly and efficiently on his wife. As in the Stratton lawsuit above, this was considered a break of contract claim in which the man accusing won and he received 40 English Pounds. [1. First Recorded Malpractice, 1828]

The term malpractice comes from the Latin “mala praxis” that was coined by a British Legal Scholar, Sir William Blackstone, in 1765 in his “Commentaries on the Laws of England”. He stated negligence or inappropriate care by a physician as “mala praxis.” He categorized a “mala praxis” claim as a private wrong, not as a contract. [5. The Lancet, 2010]

Since the creation and documentation of “mala praxis”, and the various lawsuits that have ensued over the last few decades, there has been a lot of debate around whether there is a  ‘crises of Medical Malpractice and if we are in need of reforms. Medial Malpractice Reforms at a federal level can benefit patient care and improve bottom line healthcare costs.

Advancement in Medicine

During the early nineteenth century, advancement in medicine was on the rise. This was a time of drastic adjustment in medical technology and discovery. New encounters were evolving that formed a stronger scientific foundation for the medical field, which shaped various aspects such as surgery and the ability to save lives today. Along with these advancements came a new approach with physicians who started to see themselves as visionaries. Progressing technology and surgeries also formed new legal hazards for physicians, as we were ironing out the kinks in some ways and trying to find the right formula for different aspects of medicine. [4. Drexel University Law Review, 2011] Lawsuits within Medical Malpractice Litigation spiked during this time as medicine was in its first growing stages. With innovation comes risk, and with risk there are sometimes consequences to follow.

During the 1900’s is when the biggest spike in Malpractice Litigation took place, at a 300% increase specifically from when Medical Malpractice was first documented, to then. [6. Brody School of Medicine, 1999] Most experts report this uptick related to the major changes in the medical system from technology, administration and reporting, to the formalization of specialties/specialists as opposed to an all-inclusive ‘doctor’ who does it all. Change is the only constant in life and this is quite the reality when it comes to medicine as we evolve so does process, medications, treatments, procedures, and the education/formalization that goes into it. Unfortunately, there is only so much that science can guide us, though we are working towards better outcomes and an improved healthcare system, a lot of hazards come with working with people, as we are very individual in a lot of ways. Most of the Malpractice lawsuits sought out during this time were due to a lack of comprehension towards their contracts, misunderstanding of the treatment being provided, and confusion towards what negligence means. This is what has caused a cycle of reforms to be made towards the United States Medical Malpractice legal system and most of which, at a state level.

Tort Reform

It has been said that there is a high rising crisis in medical malpractice litigation, even today. Quite a few different states have approved an assortment of different legislative actions, referred to as “tort reform”. These include ending lawsuits in which someone does not have to pay out if the defendants lack the resources to pay and utilizing workers compensation and health insurance to award certain types of claims. This limits possible fees that a lawyer can gain, which in turn limits the length of time after an injury that a lawsuit may be brought to trial. This can also take off the burden of paying someone out right away in a lump sum, allowing for installments or a payment plan of sorts. Similar reform efforts have been presented to the federal government level as well, in hopes of federal level reform, though no such action exists as of late. [2. Bal, Sonny 2009]

It was found that no matter the differences in malpractice payments at a state level, legal reforms that capped total damages specifically were associated with lower payments and premiums all together. While other studies report mixed results, it is very possible decreases in malpractice payments could be more likely if damage caps were national. [7. Thorpe, 2004]

Every state has different guidelines for filing a lawsuit with medical negligence; some of these regulations are the result of tort reforms put in place over the years. One common regulation amongst most of these states is to require an affidavit by a peer physician within a similar specialty or of the like, attesting to the accuracy and overall validity of the case before it can be filed. It also limits an accuser’s knowledge of a defendant’s assets, by figuring out if a credible case is actually being presented. [7. Thorpe, 2004] These rules and procedures have drastically shaped Medical Malpractice lawsuits, causing more of a procedural order to be taken in a case by case basis. Most physician’s report that because of reforms and actions taken such as these, they feel more compelled to practice risky lifesaving surgeries and they feel safer in their profession.

Defensive Medicine Practice

Although, even with reforms in certain states there is still mass participation by physicians within Defensive Medicine. Most researchers of malpractice agree that defensive medicine is highly rampant, reliable estimates of its cost are extremely difficult to obtain. An initial challenge for most is to settle on a definition of defensive medicine.

The best definition for defensive medicine is when doctors order certain extensive tests, perform extra precautionary procedures, or adding on too many visits, or avoid certain high-risk patients or procedures, because of concern about malpractice liability. This does not say anything about the benefits to patients that may arise from greater use of medical services or about the damages that patients could suffer from excess or unnecessary care. [3. Millwood, 2009]

Even with this definition, there is substantial doubt around defensive medicine costs. There has been other research that has scrutinized the use of some of these procedures, investigating physicians about consciously practicing defensive medicine, and compared it against which specific conditions were treated in states with and without tort reforms.

Data from a few of these conditions to a national estimate is tricky. Physician surveys may overstate or understate the frequency of defensive practices, not eluding to the fullest extent in which it’s happening. Studies comparing states with and without tort reforms only show the frequency and change in the amount of defensive medicine associated with an increase in liability exposure, not the total amounts of defensive medicine costs.

Components of Medical Liability System Costs

The estimated spending and/or total for Medical Malpractice is between $55-$56 billion annually. [3. Millwood, 2009] For those that can be measured and articulated in financial terms can be divided into a few separate categories. The large amounts of costs are insurance payments, or the amounts that physicians and their lawyers pay out to patients; administrative expenses, consisting of attorneys’ fees and other legal expenses for both sides, plus insurer overhead; defensive medicine costs, which are the costs of medical services ordered principally for the purpose of diminishing the physician’s liability danger; and other costs, some of which are almost impossible to calculate in monetary terms.

When considering the monetary value associated with Medical Malpractice, we must also reflect the emotional and mental damages that come with litigation. During a personal interview with Dr. David Nathan, Neurosurgeon affiliated with local hospitals in Salt Lake City, Utah; he stated, “Medical Malpractice lawsuits are what keep me up at night. I am constantly having to think of new ways to cover myself professionally, the hospitals in which I am operating at and representing, as well as balancing what is in the best interest of my patient medically. It’s a very fine line to walk.” [8. Nathan 2018] Neurosurgery is one of the main liabilities within healthcare for Medical Malpractice, because of their risk-involving surgeries. It is also among the highest paid premiums for the physicians themselves, second to Obstetrics. With this insight on a personal level, it’s very compelling when making decisions towards improvements. As physicians grow more paranoid and dive further into the exercise of defensive medicine, the argument for reforms become increasingly necessary to the success of our healthcare system. By adding extra reforms such as caps on claims, safe holds for testimonies, and proof of negligence it allows physicians the ability to practice in a less stressful environment which in turn will work in favor of patient care.

Conclusion

The medical liability system costs the nation more than $55 billion annually. [3. Millwood, 2009] This is smaller than original estimates in the various debates, and it embodies a slight portion of total health care spending. Yet in absolute dollars, the amount is not insignificant. The political worth of addressing this could be quite substantial. Reforms that offer the prospect of reducing these costs have a lot of potential to lower overall health spending. Reforms to the health care system on a federal level will more than likely deliver larger opportunities for savings and aid in improving patient care.

Additionally, in states that have adopted capped claims for Medical Malpractice will mean more hesitation in pursuing an unwarranted claim, creating recurrent counterbalances, lower total insurance payouts, and less double payment of medical bills. A much larger reform debate would be to enforce a federal collateral-source offset in linking with the change to universal coverage. Which in turn, health reform and liability reform may have surprising collaborations in winding our costs down.

Resources

1. “1828: The First Recorded Medical Malpractice litigation”; duhaime.org.

2. “Clin Orthop Relat Res.” Bal, Sonny B, 467(2): 339–347, February 2009.

3. “National Costs of the Medical Liability System”; Millwood, Health Aff, 29: 1569–1577. September 2009.

4. “The malpractice crisis turns 175: What lessons does history hold for reform?”; Drexel University Law Review, Vol. 4:7, 2011.

5. “Towards a History of Medical Negligence”; The Lancet, Vol. 375, 192-193, January 2010.

6. “The Historical Origins of Medical Malpractice Litigation”; The Brody School of Medicine Newsletter, Vol. 2, No. 2, Fall 1999.

7. “The Medical Malpractice ‘Crisis’: Recent Trends and the Impact of State Tort Reforms.” Health Affairs; Thorpe, Kenneth E. Web Exclusive, W-4-20, 2004.

8. Personal Interview; Nathan, David MD, October 2018.