JUSTICE FOR NONE

The Recommendations of The Harvard Medical Practice Study

To The American College of Legal Medicine

 

As a society, we are increasingly health conscious but we are also increasingly aware of our rights as consumers of health care. We have come to expect accountability, to expect that wrongs will be corrected and rights protected. Rather than seeking ways to close off avenues of redress, our goal should be to broaden access. We should measure our achievements not only through technology but also by our justice system.

 

In very ancient times, the same individual was both the chief justice and the chief physician. There are indeed numerous examples all through history of a close relationship between law and medicine that are the two "professions of well- being," not as now when some would define us as natural enemies. The idea of lawyers and health care providers as adversaries is a relatively modern phenomenon.

 

We should not think of the changing relationship between the professions as the work of greedy lawyers or of the incompetent doctors. Instead, we should face the facts of increased technology in medicine and the raised expectations of health care consumers. We have come to expect accountability from our health care system. Caveat emptor is dead -- or should be.

 

Once again, however, the medical industry is raising the same hue and cry as it did in the mid-1970s. Once again factual inaccuracies abound and once again, health care consumers are being asked to give up their rights if they are injured by their doctors' negligence. Now we have the imprimatur of Harvard University and the New York State Department of Health to shield the medical profession from accountability for negligence.

 

All around the country there are active efforts to either chip away at the civil justice system or to replace it.

 

For example:

Indiana and North Dakota are working for bills providing varying degrees of immunity for doctors who treat indigent patients.

 

A bill has been introduced in North Carolina to implement a neurologically impaired infant compensation plan. Florida and Virginia already have such plans.

 

 

 

The so-called malpractice "crisis" of the mid-1970's inspired an extraordinary legislative onslaught on the common law with regard to medical malpractice.  In 1975 and 1976 alone forty-three states and two territories legislatively modified one or more significant aspects of the common law. Between 1975 and 1980, some three hundred state statutes were enacted with the aim of protecting doctors.

 

In 1985, a study of medical malpractice insurance, partially funded by the U. S. Health Care Financing Administration (HCFA), concluded that: "Almost all states enacted legislation in response to the rapid rise in malpractice insurance premiums which occurred during the mid-1970s. The empirical results of the study presented here give no indication that individual state legislative actions or actions taken collectively, had their intended effects on premiums."

 

In 1986, the New York State Legislature mandated the Department of Health to conduct a complete study of the medical malpractice system in the state. The Harvard Medical Practice Study, carried out under contract to the State of New York, was designed to shed light on the policy debate going on in New York and throughout the country about how society can best deal with its medical injuries and malpractice. Almost from the start, the real purpose of the $3 million, 1000-page Report produced by the Harvard Medical Group was to "rationalize" a system that says "negligence is no one's fault."

 

It bears out what we have known:

1. There is a staggering crisis in health care quality in New York State;

 

2. "Hidden" negligence is shocking;

 

3. Bad medical care is found more frequently at hospitals with a greater proportion of minority patients;

 

4. Patients over the age of 65 were found more likely to receive substandard care;

 

5. Many people never knew that they or their family members had been subjected to bad or incompetent medical services; and

 

6. Seriously injured patients gain almost nothing filing a complaint with the Department of Health that rarely responds or takes effective action.

 

The Harvard Study dealt with four main issues:

 

1. The incidence of medical injury in New York

 

2. The response of the tort litigation system to that injury

 

3. Losses suffered and compensation received by victims

 

4. Impressions concerning the deterrent effects of the tort system

 

The researchers relied on reviews of a sample number of medical records to make estimates about the entire population of hospital discharges. After sampling adjustments, Harvard determined that a review of 30,121 medical records from 51 hospitals, representing 1% of the 2.6 million actual discharges in 1984, would be statistically adequate to make generalizations on all hospitalizations throughout New York State. In exchange for their cooperation with the Harvard study, hospitals and the New York State Medical Society were promised absolute immunity from any regulatory actions by the Department of Health.

 

Records went through several screenings until physician reviewers eventually determined if the case was eligible to be classified first as an "adverse event" and secondly as a "negligent adverse event." Adverse events were defined as "an unintended injury caused by medical management rather than by the disease process." An injury also had to be "sufficiently serious to lead to prolong[ed] hospitalization or temporary or permanent impairment or disability." Physician- reviewers were asked to focus on two critical issues: causation and negligence. An important distinction for the researchers was to eliminate those records where the medical mismanagement was due either to a patient's own contributory negligence or the underlying disease, more commonly called "a pre-existing condition." Using these instructions, the Harvard group concluded that 98,609 adverse events, causing 13.451 deaths had occurred in 1984.

 

The Harvard Report revealed what has long been known by in the legal profession: the malpractice "crisis" is about negligence in the health care system: 98,000 victims of so-called adverse events are the tragic consequences of substandard care in hospitals throughout New York State. The finding that 20,000 disabling injuries and 7,000 deaths which were directly attributable to negligence is staggering, but not surprising to anyone who has represented even one of these victims in a court of law.

 

Negligence, as defined by the Harvard Report, refers to an injury caused by the "failure to meet standards reasonably expected to the average physician , provider, or institution.”

 

As an answer to the amount of documented medical negligence in New York, the Department of Health proposed to obliterate legal rights at a time when the health care system is unhealthy and to substitute the right to a trial by jury for the right to a trial by bureaucrat. The reviewers admit that they had inadequate information about the success of the tort system in weeding out non-meritorious claims (11-5)  but nonetheless relegate us to a system that legalizes medical negligence.

 

Despite the numbers, the endless charts, the neutralized terminology for quantifying activities that permanently incapacitate or kill people, the Report awkwardly titled "Patients, Doctors and Lawyers: Medical Injury, Malpractice Litigation, And Patient compensation in New York" found more negligence than they bargained for. In fact, the findings are shocking: an estimated 27.000 people were victims of medical negligence. Almost 7,000 of these people were killed at the hands of a negligent doctor.

 

As dramatic as the findings of negligence are, there is some indication that they even underestimate the actual numbers. The executive summary of the Report smoothly declares: "We found efficient and reliable ways to sift through thousands of medical records to find the few that indicate the patient's disability caused by medical mismanagement." But more telling information was hidden in the appendices of instructions given to the doctors reviewing the records. The secret world of medicine and mistakes was partially revealed in this proviso given to the physician-reviewers:

 

Unfortunately, analysis of whether there was negligence often depends on details of management that are not recorded in the record. In such cases, the reviewer must use his experience and judgment and "read between the lines." (Physician Record Review Manual, Appendix 5D)

 

A preliminary study conducted by Harvard to test the accuracy of the reviewing process found that negligent events were not discovered by reviewers in 23% of the cases. Applied to the overall results of the research, this means that as many as 6,000 negligent cases probably went undetected.

 

The Harvard Report states that "medical intervention is a risky enterprise." A masterpiece of understatement. We are then told that problem is not with the medical system but with the legal system as we have too few claims (11-4):

 

"In 1984, the number of negligent adverse events will exceed the number of paid claims by 16 times. We do not now have a problem of too many claims; if anything there are too few."

 

In fact, every study examining the question of medical negligence has reached the same conclusion:

 

A 1972 study for the Department of Health, Education and Welfare projected that only six percent of patients injured by medical negligence in two typical hospitals would bring claims for their injuries. 

 

The Rand Corporation found that only 1 in 15 severe injuries resulted in a claim.

 

Patricia M. Danzon, an economist at the Wharton School of the University of Pennsylvania, estimated that only 10% of the incidents of genuine medical malpractice led to a claim.

 

The Harvard Report concluded that "one category of preventable AEs (adverse events) is that group due to negligence." These 27,000 injuries and deaths were preventable and not the unavoidable consequence of carefully prescribed treatment or related to the underlying illness. Despite this finding, however, the Harvard group reaches the conclusion that preventable, needless deaths and injuries should be relegated to a pre-determined scheme of compensation.

 

Negligence was judged to have occurred in more than 75% of the diagnostic and therapeutic-related errors. The most common reason for diagnostic errors, as identified by the physicians themselves, was "avoidable delay and failure to employ tests that were indicated." These cases were also responsible for the most severe, disabling injuries lasting more than 6 months. Therapeutic errors were most commonly associated with a physician's "failure to take precautions to prevent a complication." In the hospital itself, more than 70% of all adverse events identified as occurring in the emergency room were due to negligence.

 

The consequences for patient injury deaths are staggering -- to restate the Harvard Report conclusion: these incidents could have been prevented.

 

The primary objective of the Harvard study was to attack the legal medical malpractice system and prove that "no fault" could be a handy substitute. The group sought to make a no-fault system look economically feasible. Toward that goal, the study put $894 million as the price tag since approximately $1 billion is now being paid in malpractice premiums. The estimate was made by eliminating administrative expenses, estimating other first party private and governmental programs to provide primary benefits and developing restrictive criteria benefit eligibility.

 

The largest single cost was attributed to approximately $500 million in lost household production reimbursement to women, as homemakers. But the Harvard no-fault exclusionary logic goes like this: most of the homemakers were elderly and many die before any substantial medical or wage loss payments would have to be made. The Harvard group specifically declared "neither private nor social insurance plans provide benefits for losses of household production and it is not clear that a no-fault plan for medical injuries would pay such benefits."

 

Interestingly, despite finding fault with the litigation system that many negligent incidents do not result in litigation, the Harvard Report concluded that all injuries could not be covered under a no-fault system and developed the criteria by which these injuries could be precluded from compensation under a no-fault system. Economic feasibility was achieved by excluding cases. The methods include:

 

estimate 70% of the injuries categorized as minor and not serious to warrant a claim;

 

eliminate payment for any costs incurred during the first 6 months of any injury;

 

assume other compensation systems (workers compensation, other health care benefits) will primarily pay for medical care and lost wages;

 

expect many patient injuries to be regarded as "pre-existing" conditions and not related to treatment;

 

evaluate a high percentage of medically negligent deaths as "limited life expectancies" and not compensable;

 

expect negligence to go undetected by patients and under-reported to governmental agencies as it is now;

 

eliminate all payments for pain and suffering;

 

view senior citizens as predominantly having "chronic diseases" rather than medical injuries and thus largely ineligible for benefits.

 

One of the criticisms made by the Report of the current tort system is that smaller cases have the greatest difficulty getting into the legal process. But the Harvard no-fault plan excludes these injuries, as well: "the focus and concern of a no-fault program would be the longer lasting disability that affects far fewer patients but inflicts a severe and even catastrophic loss" (emphasis added).

 

If we accept the recommendations of the New York State Department of Health and the Harvard Study there would then be no accountability for the medicine men and women in our midst. However, the Report states that "physicians believe that they are about three times as likely to be sued for a negligent case than for an injury that did not involve negligence." Therefore, doctors who believed they were at greater risk of a lawsuit were likely to change their patterns whether they were truly at risk or not.

 

With respect to the overall effects of deterrence of the tort system, there was evidence that it "may reduce medical injury. There may well be deterrent effects though reasonable people could differ about their magnitude."

 

Other findings include the following:

1. Physicians were often unwilling to label substandard care as negligent.

 

2. They were frequently opposed to compensation for iatrogenic injury. (9-3)

 

3. They prefer their judges to be other physicians rather than health care administrators at the state or federal level or judges, lawyers, or juries in the courtroom. (9-67)

 

4. The tort system "may have a deterrent effect as evidenced by physicians overestimating the risk of being sued." (9-67)

 

5. The tort system "clearly delivers considerable amounts of money into the hands of some seriously injured patients." (9-4)

 

On the other hand, no-fault systems have not worked to deter injuries or provide compensation when they have been tried. For example, the state of Virginia set up a fund to provide immunity to negligent OB/GYNs for delivering neurologically impaired babies. Supposedly 40 infants a year were to be compensated. Three years and $25 million dollars later, not a single child has been compensated.

 

The Harvard Report itself provides evidence as to why a no-fault system for medical negligence is not workable. Causation would be central in determining an injury or death under a no fault system. The Harvard Report states that: "Removing medical accident compensation from a tort law framework does not do away with problems of causation. In a no-fault system, negligence does not need to be demonstrated, but an individual claiming compensation must still prove that the injury for which he seeks compensation was caused by an accident in medical mismanagement rather than his disease." (5-10) The burden of proving causation would rest entirely with the injured patient or a family member.

 

Additionally, the no-fault concept does not address the failed protective safeguards, sluggish or non-existent medical peer review, governmental regulation or the lack of quality control standards that could prevent the negligent injuries or deaths from ever occurring.

 

Professionals accepting the privilege to practice must also assume an obligation to be responsible for falling below the standard of care that demands they perform at a minimally acceptable standard. No-fault obscures that standard at great public expense.

 

The litigation system continues to play the most significant role as a deterrent. This was made clear in the Harvard Report. For example, Hospital Risk Management has been an area of insurance review that developed in the last decade as a direct result of malpractice litigation even though its purpose is to save money and reduce litigation by minimizing the risk associated with hospital activities. Harvard researchers tested their ability to identify negligence and adverse events through medical records by comparing a hospital's internal quality control mechanisms where clinical departmental review of events are focused at achieving optimal level of care and ostensibly quality of care --- with those identified through the risk management process.

 

These findings show that the internal hospital review missed events independently discovered by the risk management process in almost 85% of the instances. The Report noted that "no evidence was found that any of these cases led to formal efforts by the quality assurance committees of clinical departments to counsel or discipline physicians or other providers, to investigate or evaluate individuals or practices, or to recommend or institute new policies or guidelines for clinical care."

 

In 1984, the same year Harvard discovered the 27,000 negligent events, barely 91 complaints from hospitals were received by the Office of Professional Medical Conduct of the Department of Health. In the sane period, OPMC identified only 16 physicians for final disciplinary action for negligence or incompetence. Internal and regulatory mechanisms seem to have little impact on negligence.

 

The Harvard Study found that doctors regard disciplinary systems such as peer review, quality assurance or action from the State as minimally impacting on their practice. Incident reporting systems and routine surveillance were seen as ineffective and intrusive. But, the Report noted that doctors are concerned that there can be legal consequences for their actions.

 

The proponents of the no-fault system always state that the system should be affordable, efficient and "insure that the high quality of medical care in the United States is maintained and improved." Moreover, if the public -- rather than the doctor -- "is to bear much of the cost of a new approach, it should be confident that and effective peer-review system is in place to reduce the occurrence of malpractice, identify it when it does occur and deal appropriately with physicians whose practice is substandard."

 

How successful has the profession been in policing itself? Can we really trust it to save our lives and that of our children? So far the answer has to be a resounding "No."

 

The Office of Professional Medical Conduct (OPMC) is part of the New York State Department of Health and is responsible for professional disciplinary proceedings. Two of the four major goals of the Office are:

 

a. To protect the public from medical negligence

 

b. To deter the incidence of professional misconduct by physicians’

 

Impaired physicians, according to OPMC, represent approximately one-third of cases in which there is a disciplinary proceeding or a temporary surrender of a doctor's license. However, says OPMC, this is not the most effective way to deal with the problem. Currently the Office monitors 60 recovering physicians and holds 80 surrendered licenses. But the public does not know their names.

 

Since 1986, the Office's Medical Malpractice Claims Unit has collected, maintained, and analyzed data on all malpractice claims filed in New York State. Carriers are required to report cancellation of professional liability insurance for reasons other than non-payment of premiums. New York has the most extensive malpractice data base in the country and OPMC expects that "it will continue to be useful to government to insurance carriers, the hospital industry and physicians’.” 

 

In fact, hospital and insurance companies may use the data to assist in data and risk management efforts.  What about the public?

 

In 1986, for the 50,956 doctors in New York State (an increasing number), 2,352 complaints were received; there were 15 suspensions:

 

Number  Reason

Four   Impairment

Five   Negligence/incompetence

One   Sexual Abuse

Five   Drug Diversion

 

The Harvard study surveyed doctors to find out the extent to which they felt the tort system serves as a deterrent and to compare what doctors thought about other disciplinary systems such as peer reviews or regulatory agency actions. Physicians prefer hospital-based peer review over review by an outside agency (9-2). Obviously, doctors are likely to take a dim view of any of these systems. The study concluded, however, that "With respect to the debate about the value of tort liability in promoting quality, physicians appear to be influenced more by the general malpractice environment." (9-34) By contrast, a doctor commenting on the regulatory system in New York, summarized the view of other doctors: "You have to do something outlandish before you get disciplined.'' Perhaps because of its rare occurrence, the Report concluded "that the perceived effectiveness of the state seems to lie in its authority to remove licenses."

 

Overall, "state incident reporting systems and routine surveillance systems are regarded as ineffective and intrusive." Other mechanisms such as PRO'S and the Quality Assurance Programs at individual hospitals received mixed reviews, regarded by some physicians to be cumbersome and laden with paperwork. The Report also observed that "physicians are unreceptive to the efforts of others to identify negligence, especially those outside the medical profession." (9-45) For doctors, it would seem, the discipline system that governs least, governs best.

 

The study sought to assess how often physicians judged the negligence of fellow doctors in their specialty group. In what confirms the widely held view of the conspiracy of silence, Harvard researchers found that physicians were "often unwilling to label substandard care as negligent and are also often opposed to compensation" for physician-related injuries. Surgeons, internists and obstetricians all differed in their judgments about causation and negligence within their specialty group. The differences in opinion in one case led the Harvard researchers to conclude "this reflects how for some individual physicians, unless there is a major, or even perhaps willful blunder, the medical care process is exonerated." In general, physicians were opposed to compensation for medical injury (9-51) and were "confused about negligence." Most physicians perceive lawsuits against them as arising from circumstances beyond their control. (9-65)

 

In one case, a patient underwent repair of an abdominal aneurysm. Four hours after surgery his blood pressure dropped from 140 to 90 systolic, urine output from 40 to 10 cc/hour, and pulse went from 80 to 110. 300 cc of prenatal fluid was given over 30 minutes and his pressure and urine output increased and his pulse returned to normal. Since his hematocrit was 23%, two units of blood were given. Two hours later the same changes occurred with a similar response to transfusion of fluid and blood. Eight hours after his operation his abdomen was obviously distended and his hematocrit remained at 25% despite receiving eight units of blood. Four hours and two units of blood later he was returned to the operating room where a large retroperitoneal hematoma was found and a bleeding branch of a mesenteric artery ligated. Following this operation Mr. Smith could not be extubated and required chronic intubation. Over the next five weeks he had several episodes of sepsis and then went into oliguric renal failure requiring hemodialysis. He finally died six weeks after his operation.

 

One third of the surgeons interviewed perceived negligence and another third perceived no negligence. Despite findings of error and despite agreement on deviation from the standard of care, judgments of negligence were exceedingly difficult for the doctors.

 

A representative surgeon stated: "One of these days I am going to be wrong. So far I have not, but I will be." (9-44)

 

All physicians were found to have difficulty in judging negligence and did not equate it with failure to meet the standard of care. (9-45) "In short," states the Report, "they cannot admit to negligence and so have difficulty labeling care provided by others as negligent." (9-45)

 

Most physicians believe in their competence and the label of "negligence" made them feel incompetent and they were reluctant to acknowledge mistakes as negligence. We can call taxi drivers negligent; we can call architects negligent; we can call lawyers negligent -- but we must have faith in doctors. Moreover, we must not only trust them with our safety we must believe and worship the M-Deity.

 

Despite the dissenting opinions and their unwillingness to judge collegial negligence, a no-fault system would be dependent on such physicians to determine who was eligible for payment and who was not. Under a no-fault compensation system, as specifically stated in the Harvard Report, "determining the merit of a claim for compensation would focus solely on issues of causation." Given this pronouncement and the wide disparity between doctor calls, a no fault system would flourish as a full protection plan for negligent doctors.

 

The New York State AFL-CIO and unions around the state have spent the last several years in a legislative fight to improve the workers compensation system. The fact that unions were forced to undertake this fight to even modestly raise benefit levels suggests that the ability to adequately compensate intended beneficiaries is under a no-fault system that is not automatic. The current backlog of thousands of claims in the workers compensation system indicates that the speed of delivery of compensation is not as fast as proponents of a no fault administrative system would have the public believe. Who would organize the fight to improve an administrative system for compensating victims of medical negligence? Can they be expected to establish the same political stamina wielded by organized labor to monitor the workers compensation system? I think not.

 

The Harvard Report recommends that the legal system be dismantled. But, the legal system is the only way by which a victim of negligence may seek to identify responsibility for negligence and gain compensation for losses incurred, future expenses and pain and suffering. Relegating negligence to no-fault neither helps to prevent injuries or deaths nor effectively brings about regulatory action against the wrongdoers causing harm.

 

Airline pilots are accountable to the public, and so are policemen. When these workers are found to be in violation of that trust, when crashes occur due to negligence or substance abuse, when unjustifiable shootings occur or brutalities exist, the violators are held up to the scrutiny of the injured populace. And so it is with in any other professionals. They are disciplined in full view of the public they have endangered or harmed and the punishment (which may be standardized and by the book) is made to fit the crime. Like the customers of a famous fast-food chain, doctors have had it their way and continue to do so, and the public and the courts and the lawmakers have let them. No other workers so involved in the health, welfare, and safety of their clients, the public, have so arrogantly fought public accountability.

 

No-fault simply permits absolute immunity to be given to the wrongdoer and places the public at a greater dependency on government regulation. Where that regulation fails to protect and prevent injuries, the public is placed at a greater risk of harm. With no legal rights to address that wrong, the public is left with no recourse.

 

The laws of medical malpractice, like most tort law, under-deters unsafe behavior. But there is still a deterrent effect and doctors still expect some liability costs -- whether financial or psychological -- if they behave negligently.

 

The tort system has flaws and much of it has to do with the insurance industry. Malpractice insurance weakens the deterrent effect of tort law but does not defeat it, contrary to popular belief  -- or wishful thinking. Many doctors are unable to assess with any accuracy the costs of engaging in certain activities in certain areas. For example, a teenage driver probably has little idea about the risks he creates simply by driving. By translating those risks into a high insurance premium, insurance conveys to that teenager a message about the expected costs of his behavior that is insufficiently concrete form that he will be able to weigh those costs against the benefits to him driving. Similarly, insurance moderates the tendency of risk-averse persons to exaggerate the expected costs of their activities.

 

Unfortunately, insurers have not used a physician's malpractice claims to set premium rates. But malpractice judgments can affect a doctor financially by causing the loss of patients even though five doctors reported their practices had improved as a result of the judgments against them! We can only suppose that the conspiracy of silence protected them and that there was no cause-and-effect relationship.

 

Remember too that not only do doctors pass along hikes in premiums to us but insurance cost hikes have, on average, amounted to one-half of one percent of a doctor's gross income.

 

So we pay with our dollars and with our lives. The solution should not be to also pay with our legal rights. Instead the system should be made to be more not less of a deterrent.

 

Physicians' incomes have kept pace with inflation and the largest net income increases were registered by those doctors who had the largest increase in malpractice insurance.

 

Economic deterrence mainly fails with respect to medical malpractice because an individual doctor's record of performance has virtually no effect on premium rates. But why not?

 

Experience rating could be used but doctors are not eager for its adoption. Doctors own at least 30 malpractice insurance companies and have captured half the market for malpractice insurance. It seems likely that doctors are highly risk-averse because they believe that malpractice suits and awards bear little relationship to the existence of negligence by the defendant doctor!

 

Instead of a no-fault or doctor protection plan, we should strengthen the tort law system and the health care system.

 

In spite of the facts of little doctor discipline and much negligence, physicians believe that professional liability is one of the most severe problems they face today, according to surveys by the American Medical Association, the American College of Surgeons and state medical societies.

 

In fact, they believe it is adversely affecting patient care. At a meeting of the American Cancer Society in March 1986, Dr. Vincent T. DeVita, Jr., then director of the National Cancer Institute, estimated that the number of patients undergoing therapy for cancer who died as a result of less than optimal treatment -- or in other words, under treatment -- might be 10,000 or more a year. "Malpractice is behind it in part. Doctors are frightened to death of malpractice, said Dr. DeVita. At the same meeting, Dr. William M. Hyrniuk of the Ontario Cancer Foundation stated, "Doctors tend to under treat in this country [the United States] because they fear complications will lead to a lawsuit. People are suing themselves into second-class medicine by pursuing this mentality. They are binding their physician's hands."

 

Is this fact or fiction? The reality is that there is no evidence of litigation "explosion in the number of lawsuits filed or size of claims paid but such evidence as there is supporting the opposite conclusion."

 

A report on "tort reform" prepared for the National Association of Attorneys General by the attorneys general of six states found that the cause of problems in availability and affordability of insurance was not caused by the civil justice system but by the insurance industry and that assertions of "explosions" were overstated and based on a misuse of statistics.

 

In fact, the St. Paul Fire and Marine Insurance Company which covers more physicians than any other carrier reported a decline in premiums.

 

The medical malpractice recovery rate for a plaintiff is under 50% and verdicts have largely stabilized  while court filings have decreased. 

 

The best writing on the litigation explosion myth is a 1983 article by University Wisconsin Law School professor Marc Galanter in the UCLA Law Review. Galanter penned some stunning insights. Among them:

 

1. From 1940 to 1960 the absolute rise in Federal District Court filings barely kept pace with population growth. From 1960 to 1980 there was a dramatic increase in filings on a per capita basis. But this wave of litigation did not result in slower disposition of cases. In the beginning of this century, cases lasted more than three years. In 1980 they took a little over a year.

 

2. There may have been more litigation in colonial times than now. One study of a Virginia county in 1639 shows a per capita litigation rate four times what it is today.

 

3. The United States is not the most litigious society in the world. Using some very rough data, Galanter concludes that the per capita use of civil courts in the U. S. is basically in the same range as in England, Ontario, Australia, Denmark and New Zealand.

 

We should also remember that many of the legitimate statistics about jury awards and mass product liability claims that horrify defendants concern cases we should be thankful were brought and awards that were fully justified. DES, Pinto, and asbestos aren't code words for the system destroying society; they're examples of the system making life safer for all of us and holding defendants accountable for the worst kind of conduct.

 

More than 20 years ago, massive efforts were made to alter the civil justice system with no-fault legislation. In some states, such as Wisconsin there has been a $25,000.00 cap on governmental liability since 1963. Iowa has had "tort reform" for over ten years. In the late 1960's and the mid-1970’s, many states created preferential legislation to protect physicians from medical negligence cases. Some years ago, Ontario adopted radical "tort reform." Yet, after more than 20 years of such tinkering with the rights of the victim-consumer, insurance rates have continued to rise in Ontario, Iowa and in every state where a tort or medical malpractice or products liability "crisis" has occurred. The crisis is manufactured for and permits the insurance industry to enrich itself at our doctors' expense and to the detriment of our health.

 

Facts we need to know:

 

1. Good doctors, who are the overwhelming majority, subsidize bad doctors.

 

2. Although study after study has shown that a small percentage of doctors are responsible for a large percentage of malpractice, doctors who have never been sued pay the same premium as a doctor found liable for malpractice several times. In Michigan 19.3% of doctors accounted for 72.2% of claims; 58.1% had no claims. In Florida 0.7% of doctors accounted for 24% of claims; one doctor for 31 claims. In Los Angeles 0.6% of doctors accounted for 30% of all payments.

 

3. Doctors who do few procedures subsidize doctors who do many procedures. Under the current rating system in use in most states, the General Practitioner who delivers a few babies each year pays as much as OB/GYNs who deliver hundreds of babies.

 

4. Doctors pay when hospitals should pay.

 

5. Today, when negligence occurs in a hospital -- in connection with surgery or delivering babies -- the insurer for the doctor doing the surgery or delivering the baby must pay for the negligence. The hospital therefore has little incentive to police doctors who practice there, while the costs of high-risk care are borne by a small number of doctors.

 

6. Medical malpractice insurers have raised rates more than is actuarially justified.  

 

7. Limitation on malpractice suits enacted during the mid-1970s does not result in lower insurance premiums.

 

Some solutions:

 

• Increased doctor discipline -- According to a June, 1986 report by the Office of the Inspector General, HHS, "strikingly few disciplinary actions are imposed on the basis of medical malpractice." Actions taken against physicians are less than that of other health professionals.

• Increase the license fee for doctors to $500.00.

• This would create a $200 million fund for state licensing boards to use to prevent malpractice.

• Require state licensing to boards and professional peer review groups to take aggressive actions to identify, discipline, or remove from practice physicians who do not deliver an acceptable quality of medical care.'  

• Require lawyers and insurance companies with information about doctors after patients prevail in malpractice suits as well as Peer Review Organizations (PRO'S) to submit all relevant data to the State Licensing Board.

• Require doctors to be recertified periodically.

• Repeal the insurance industry's exemption from the anti-trust laws.

• Experience-rate doctors to target the "bad doctors" who are causing increased rates for OB/GYNs.

• Increase penalties for truly frivolous lawsuits and for raising frivolous defenses.

• Increase arbitration of small claims.

• Eliminate secrecy agreements with regard to settlements.

• Limit attorney's fees to one-third of recovery and limit defendant's attorney's fees so there will be an incentive to settle meritorious claims early.

• Establish national data banks for hospital and doctor performance.

• Improve state regulation of the insurance industry by requiring prior approval of any rate increase, experience rating and by increasing staffs and budgets of the often ineffective state insurance offices.

• Enact Federal disclosure legislation requiring the industry requiring the insurance industry to submit annual data on claims, premiums and investment income on a line-by-line basis to a new Federal Insurance Office.

• Establish state insurance funds in each state to offer reasonably priced insurance to those who cannot be served by the private insurance market.

• Require health care providers to participate in risk management programs.

• Improve physician-patient communication about potential risks and outcomes associated with treatment (informed consent).

 

As Judge Judith S. Kaye of the New York Court of Appeals recently observed:

 

"Not for a moment would I urge that our system is perfect, even with the recent reforms which have apparently had some moderating effect. Everyone seems to agree that we can and must find ways to improve the system to better serve the public and accomplish the objectives of deterrence and compensation, make the system less cumbersome, less protracted, less costly and chancy. But I am also aware that professional incompetence and carelessness are a public threat that is ameliorated by our tort system, and I do not believe that eliminating the lawyers is the solution to today's medical malpractice problems.

 

It seems, then, that we are at some sort of crossroads, and I am reminded of the prophetic words of Yogi Berra: When you reach a crossroads, take it."

 

Medical malpractice affects all of us and the damage to the injured party cannot ever be fully measured. For the rest of us there are increased costs whether they are to us as health care consumers, the healthcare providers or insurers.

 

The ideal way to eliminate medical malpractice lawsuits and their cost in terms of injury and dollars is to eliminate medical negligence, i.e. reduce the incidence of malpractice incidence.

 

However, the American civil justice system should not be tom apart in reaction to self-serving needs and undocumented claims.

 

We have a compensation system for victims of negligence in this country, albeit imperfect. It is, however, a carefully evolving set of laws, empirically derived to generate more than payment. Its purpose is also to deter and to disclose. Malpractice may be denounced as an atrocity visited upon doctors by the legal system, but immunity breeds irresponsibility. We need to know about the quality of the health care we receive. The court serves as a substitute for the marketplace to send a signal to physicians who are careless or incompetent.

 

In the "Pluses of Malpractice Suits," William Ira Bennett, the Editor of the Harvard Medical School Health Letter, summed it up:

 

Despite its flaws, which are in large part flaws of the way malpractice insurance is written, the malpractice system almost certainly costs less, by deterring negligent care, than it saves. I find it impossible to imagine that the students I see each week will make incompetent or negligent decisions, or that they will be influenced more by the threat of malpractice than by the seriousness and generosity of spirit they bring into the classroom. But we live in a world of data, and the data suggest that to eliminate or seriously restrict a patient's right to file a malpractice claim is a step we would undertake at our peril.

 

The Chinese character for 'crisis' is made up of two different characters, one signifying 'danger' and the other 'opportunity.' Which road shall we take?

 

 

 

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1) There is considerable dispute over the reality of a crisis. See e.g. Shields & Taylor, The Limitation on Recovery in Medical Negligence Cases in Virginia 16 U. Rich. L. Rev. 799,810-81 1 (1982).

 

2) Sloan, State Responses to the Malpractice Insurance "Crisis" of the 1970is: An Empirical Assessment 9 J Health Politics. Policy and Law, 629 (1985).

 

3) All references in parenthesis refer to the chapter and page in the Harvard Report.

 

4) Pocincki, Dogger & Schwartz, "The Incidence of Iatrogenic Injuries", Report of the Secretary’s Commission on Medical Malpractice (1973).

 

5) New York Times, July 24, 1988.

 

6) Barry M. Manvel, M. D. New England Journal of Medicine, Vol. 322, No. 9.

7) p. 4 Report of OPMC, 1990.

 

8) supra, p. 8.

 

9) See Appendix A for Flow Chart of Existing Professional Medical conduct Process and Appendix B for 1990 analysis.

 

10) See Bell, "Legislative Intrusions Into the Common Law of Medical Malpractice: Thoughts About the Deterrent Effect of Tort Liability," Syracuse Law Rev., Vol. 35: 939 at p. 954.

 

11) Harvey L. Shubat, American Medical Association Surveys of Physicians and Public Opinion, AMA Division of Public Opinion.

 

12) See "The Crisis in Medical Malpractice: A Comparison of Trends in the United States, Canada, the United Kingdom and Australia," Proceedings of the Second International Conference on Health Law and Ethics, Vol. 18: 1-2, Spring- Summer, 1990.

 

13) See also "Are Malpractice Premiums Leveling Off for Good?” Medical Economics, 1989.

 

14) National Center for State Courts, April 21, 1986.

 

15) Florida malpractice premiums are the highest in the country. Although medical leaders say lawsuits and high premiums are driving doctors out of Florida, the Governor’s Task Force on Medical Malpractice found the state had an oversupply of doctors.

 

The Department of Professional Regulation received 6,378 complaints from 1981 to 1986, only 106 coming from medical societies.

 

Over the past decade, 675 of the state’s 22,000 doctors paid two or more malpractice claims and accounted for 48% of the malpractice awards in the state. Four of Florida’s nine most-sued doctors have been investigated by state officials for violating minimum standards of medical care including operating on a wrong knee, inducing labor for their own convenience and selling illegal drugs. One doctor is responsible for 31 claims.

 

3% of Florida doctors accounted for nearly half the money paid to malpractice victims.

 

16) Statement of John Spinella, President Medical Mutual Liability Insurance Society of Maryland, October 22, 1988.

 

17) Cleveland Plain Dealer, April 13, 1985.

 

18) See Medical Malpractice: A Framework for Action, General Accounting Office, May, 1987.

 

19) New York Times, July 24, 1988.