The case for medical courts

February 10, 2011

Medical errors are variably estimated to kill between 40,000 and 100,000 Americans yearly, and to injure four to five times that number.

Key Points

But overall, the system compensates a vanishingly small proportion of actual injuries resulting from negligent care. If the purpose of the tort system is to compensate the injured and restore them to their prior position, and to deter negligence by facing accountability for negligent behavior, then by any outcome measure imaginable, the system is an abject failure. But after 200 years of incremental, unplanned development, and with the pressures of competing vested interests working hard to maintain the status quo, the medical tort system serves almost no one, except the lawyers.

What keeps the deserving victim out of the system? Many never realize that a bad outcome could be the result of medical negligence or error. The patient may know or suspect an error, but feel that such events are merely unfortunate, or to be expected, and don't seek money damages. Many simply forgive the doctor.

But many people who are injured do seek redress, and are simply not served by the system. They may have suffered only a moderate injury that is not worth much money. Such cases have little appeal for plaintiffs' lawyers, since the fee is therefore small. Some cases resulting in fatalities are likewise unattractive from a market perspective, because while the damages involved may be higher, they are not nearly as high as the ongoing needs, pain, and suffering of a severely injured but living patient.

The result is that negligence severe enough to cause death may go unpunished, while similar behavior not resulting in death may bring multi-million dollar liability and shame onto the practitioner who may have recognized the error and took steps to ameliorate it, thus keeping the patient alive.

From the doctor's perspective, the numbers of suits are overwhelming, and the personal risk to each doctor is high. While it is contrary to the actual numbers, this perception is widespread, to the point that the perceived risk by doctors has been estimated to be three times the actual risk.3

Doctors' perceptions of malpractice

What drives this perception? We live and die professionally by our reputations. A malpractice allegation is a direct, shattering blow to that reputation. It's easy to personalize the legalistic language of the complaint, detailing the "wanton disregard for the patient's safety," the "cruelty," and the "reckless and callous neglect" of their alleged transgression. Even if false, it is impossible not to feel anger, and if the doctor feels any doubt about his culpability, the wound is so much the worse. Then the physician waits while people with expertise foreign to him direct events and determine his fate. When resolution comes, it may not reflect the doctor's actual fault and may involve large sums of money, and with personal assets at risk, potential ruin for the doctor.

Even if the judgment favors the doctor, as the majority do, the victory, after years and much expense, is often Pyrrhic at best. Thus, it is easy to understand why so imperfect a process is so feared.

On the other hand, the system has apparently failed to reduce the incidence of malpractice to an acceptable level. Malpractice continues at an appalling rate, and many bemoan their risks and practice defensive medicine. They order more tests than necessary, pursue diagnoses to the bitter end, and intervene actively, rather than use clinical sense. They risk doing more harm than good, and generate more expenses, with their bias toward excessive interventions and testing. There is no doubt that this accounts for a large portion of the waste in the medical system.