There Are Too Few Lawsuits, Not Too Many
Malpractice filings encourage better medical treatment.
By Amitai Etzioni, Amitai Etzioni teaches sociology at George
Washington University. His most recent book is "From Empire to
Community" (Palgrave Macmillan, 2004).
Expect to hear all about it during the debates tonight,
when Vice President Dick Cheney meets former civil
litigator John Edwards: Junk lawsuits are ruining
America.
For the Republicans, curbing medical malpractice and
other "frivolous" suits are a key theme of the campaign.
Four states will vote Nov. 2 on whether to enact
legislation limiting such lawsuits.
But the truth is, there aren't too many civil lawsuits;
there are too few. Take medical malpractice. The
American Medical Assn. warns us that million-dollar
jury awards and a flood of frivolous lawsuits are
increasing the cost of doctors' insurance and creating a
"full-blown liability crisis." But for every patient who
sues, there are several who should but don't.
A 1990 Harvard University study found that only one
out of eight patients who had a valid medical malpractice claim actually filed a
suit. The study examined the records of more than 30,000 patients in New York
— one of the nation's most litigious states — and discovered that in 1984 nearly
13,000 cases supported by "strong or certain evidence of negligence" were never
pursued in court.
The Harvard study found that 3.7% of all patients suffered from complications
caused by doctors. Later studies have found that number to be as high as 17.7%.
Among the complications cited: the surgical removal of the wrong leg or kidney,
brain damage to newborns and transplant procedures that didn't properly match
donor and recipient.
In 2000, the National Academy of Sciences' Institute of Medicine found that
between 44,000 and 98,000 patients died every year because of mistakes made
by doctors and other healthcare personnel.
Why so few suits, given such facts? Many patients don't know that it was
negligence that caused their new problem. Others refuse to sue because they
consider it human to err, or are grateful to a physician of many years for past
care, or are fearful that they will be refused treatment if they do so.
Sadly, such a fear is far from groundless. A group of physicians in Texas launched
a Web page that lists the names of patients, their lawyers and expert witnesses
who testified in their support, implicitly threatening a treatment boycott against
them and anyone else who hauls doctors into court.
But even if there aren't too many malpractice suits, aren't the high jury awards
associated with those that are filed wreaking havoc? As it turns out, more than
two-thirds of malpractice lawsuits are either dismissed or dropped before they
can be settled or brought to trial, so no massive awards result. And when
plaintiffs do prevail in malpractice, really large jury awards are rare and are often
scaled back on appeal.
Granted, some people sue for no good reason. However, one can deal with such
cases without punishing those who deserve compensation. Louisiana, for instance,
has malpractice review panels made up of three doctors and an attorney who are
responsible for ruling on the merit of claims. Patients who wish to file a suit first
have to submit their cases to these panels. If a panel rules that the case is without
merit, a plaintiff still may bring his or her suit, but the panel's report can be filed
with the court. Thus such a ruling serves as a major deterrent to inappropriate
suits.
Ultimately, the issue comes down to a question of balance.
Frivolous lawsuits of all stripes must be discouraged, but negligence should be
punished. And we should be looking for ways to do everything more safely. For
instance, the medical error rate could be reduced by reducing the number of
hours interns work or improving access to computer programs that can help
doctors detect dangerous drug interactions.
In the end, though, there are just two ways to encourage doctors, hospital
administrators, HMOs and insurance companies to promote and pay for such
reforms and programs. We could enact appropriate laws and allocate the funds
to enforce them — although this would be difficult considering the power of the
medical lobbies and federal and state budget shortfalls. Or we could encourage
malpractice lawsuits whenever there is just cause — which would result in safer
medical practices across the board.
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