The Malpractice Crisis
by Ralph Nader
Dissident Voice
January 6, 2003
Have you been
watching the TV news or the TV news magazine shows lately about the sharp
increase in medical malpractice insurance premiums and agitated physicians
walking off their jobs in some states? If you have, didn't they leave you with
the impression that lawsuits against bad doctors were the cause? And these poor
old insurance companies being forced to raise those premiums, 30%, 40%, 70% all
of a sudden!
Propaganda and
slanting the news are going hand in hand these days, choreographed by the
hidden persuaders hired by the American Medical Association together with the
behind-the-scenes lobbyists of the gouging insurance companies.
Why in the world
would some physicians be willing tools of the insurance companies who are
gouging them regardless of whether they are competent, caring doctors or the
negligent, incompetent few who account for most of the claims by injured
patients? Part of the answer is that the insurance companies are scaring many
doctors with specters of litigation volume that simply does not exist.
Malpractice
cases filed and actual payments in constant dollars have been level for many
years; about nine of ten malpractice harms do not result in any lawsuits being
filed, according to various studies. Yet the human toll is deadly. A Harvard
study estimated that gross malpractice just in hospitals takes 80,000 American
lives a year plus causing hundreds of thousands of serious injuries.
Good physicians
should delve deeper into the way medical malpractice insurers do their
accounting, their reserving, and their actual practices. If physicians would
total the entire amount of premiums they paid last year and divide it evenly by
all the physicians practicing in the United States, the average premium is less
than $10,000 per doctor per year. Very manageable.
So why are some
doctors paying $50,000 or $100,000 a year to their malpractice insurers?
Because the companies have learned in the past thirty years to over-classify
their risk pools, thereby reducing their number to specific specialties like
obstetrics or orthopedic surgery in order to charge much more. In addition, by
not surcharging the few bad physicians in these specialties (known as
experience loss rating), the good specialists pay as much as incompetent ones
with a large number of payouts to their wounded patients.
There is another
political benefit for this kind of over-classification. When obstetricians are
gouged, they scream loudly, threaten not to deliver babies or actually go on strike.
This makes perfect visuals for television ‚ crying babies, physicians in their
garb blaming trial lawyers, who after all still have to persuade juries and
judges (the latter being mostly former business lawyers). Meanwhile, the
insurance companies are laughing all the way to the bank.
There are no
visuals for the slowly dying and other human casualties who receive neither
justice nor compassion nor compensation. Nor do people like Donald J. Zuk get
any television time. Mr. Zuk, chief executive of SCPIE Holdings Inc., a leading
malpractice insurer in the west, told the Wall Street Journal (June 24, 2002)
in a very revealing analysis, "I don't like to hear insurance company
executives say it's the tort injury-law system ‚ it's self-inflicted."
Neither
organized medicine nor the insurance companies are really going after bad
doctoring. The AMA's web site does not report any data about incompetent or
crooked physicians who give medicine a bad name. And loss prevention is
something the insurance companies leave to professors of insurance to talk
about.
Instead both
lobbies are funding and pressing legislators to enact laws that politicize the
courts, tie the hands of judges and juries ‚ the only ones who see, hear and
evaluate the evidence before them ‚ and make it harder for innocent men, women
and children to bring tragic cases to court and obtain an adequate award.
A favorite way
to achieve this callous goal is to put a $250,000 lifetime cap on pain and
suffering. Apart from the fact that some insurance executives make that much in
one week, every week, from your premium insurance dollars, consider how such a
cap wrecks the innocent in California.
Two year old
Steve Olson, now twelve, became blind and brain-damaged because the hospital
refused to give him a CAT scan that would have detected a growing brain mass.
His mother left her job to take care of her son. A jury awarded Steven $7.1
million in non-economic compensation for his life of darkness, pain, and
around-the-clock supervision. But the judge was forced by a California law,
that these lobbies now want Congress to enact nationwide, to reduce the amount
to $250,000.
Don't think for
a moment that restricting your court rights will reduce malpractice premiums
for physicians. Not only have past restrictions not done so, but insurance
industry and company spokespeople have openly said they will not do so and in
some cases have raised premiums right after a state enacted restrictions.
There is an
obligation for the many good doctors to speak out. Just a few weeks ago, nine
of the doctors who walked out of Wheeling Hospital in West Virginia, had cost
their insurers at least $6.3 million in malpractice claims. Among the damage
they caused, wrote the Charleston Gazette, was operating on the wrong knee,
causing the need for a liver transplant by leaving a surgical clip on an
artery, and causing a massive and fatal infection by inadvertently slicing into
a patient's stomach."
The whole
malpractice insurance premium business amounts to about what this country
spends on dog food and is one half of one percent of health care costs in this
country. Isn't it about time to focus on malpractice prevention first and
foremost, instead of pounding on the rights of hundreds of thousands of
Americans who leave their doctors far worse than when they greeted them?
If you want to
find out more about "questionable doctors" in your area and how
little the state medical licensing boards are doing to protect you, log on to www.citizen.org/hrg/
For more
information on the malpractice crisis, go to www.centerjd.org
and get ready to contact your members of Congress before it is too late.
Ralph Nader is
America’s leading consumer advocate. He is the founder of numerous public
interest groups including Public Citizen, and has twice run for President as a Green
Party candidate. His latest book is Crashing
the Party: How to Tell the Truth and Still Run for President (St. Martin’s
Press, 2002)