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A succinct op-ed in The New York Times earlier this week by UPenn Law School professor Tom Baker made some terrific points about medical malpractice, and the expensive malpractice insurance that everyone is always blaming for the skyrocketing costs of health care.

Eighty percent of malpractice claims involve significant disability or death, a 2006 analysis of medical malpractice claims conducted by the Harvard School of Public Health shows, and the amount of compensation patients receive strongly depends on the merits of their claims. Most people injured by medical malpractice do not bring legal claims, earlier studies by the same researchers have found.

In other words, patient claims, and accordingly, the malpractice insurance to cover them, are not that large unless patients can prove significant injury or death due to medical negligence. This means that claims are not draining our pocketbooks; medical negligence is.

On the other hand, medical liability has improved patient safety — by leading hospitals to hire risk managers, for example, and spurring anesthesiologists to improve their safety standards and practices. Even medical societies’ efforts to attack the liability system have helped, by inspiring the research that has documented the surprising extent of preventable injuries in hospitals. That research helped start the patient safety movement.

Disturbingly, findings have shown that hospitals in New Jersey, Pennsylvania, and in fact all over the country are still vastly underreporting preventable errors, even serious ones, that occur on their watch, despite state laws requiring them to do so. On the consumer level, patients have no way of knowing how well local hospitals are performing. State agencies do not release reports from individual hospitals regarding their rate of medical errors. Oftentimes, it is not until the health department cites a hospital for breaking state laws that the public even hears of the hospital’s failing.

Take away medical liability and you take away the only meaningful check and balance a patient has on the impossible monstrosity of a system that American health care has become.

As Baker notes, “there’s a better answer for doctors worried about high malpractice insurance premiums.” And this answer is:

…[m]edical providers should be required to disclose injuries, provide quicker compensation to deserving patients and — here’s the answer for doctors worried about their premiums — shift the responsibility for buying malpractice insurance to hospitals and other large medical institutions. Evidence-based liability reform would give these institutions the incentive they need to cut back on the most wasteful aspect of American health care: preventable medical injuries.

It’s so crazy it just might work.


  1. Gravatar for Mike Bryant

    Very important, especially as the health care lies grow, that the right messages and information keep being written and spread.

  2. Gravatar for Penny Lane

    It is vital that neither Congress or Obama do anything that will take away rights of those injured or killed as the result of medical malpractice.

  3. Gravatar for Facebook User

    As Congress and the President try to hammer out a solution for health care, please write to you Congresspersons and Senators and let them know that they must not do anything to take away the rights of those Americans injured by careless doctors, hospitals or nursing homes.

  4. Gravatar for Facebook User

    As some one who works in healthcare I can tell you it's not all just careless people who makes mistakes that work in healthcare. While there are some careless people that don't belong in healthcare some mistakes are made because plain and simple people are human and humans make mistakes. To say they don't is plain ignorance. I personally don't think a doctor, nurse, myself or anyone else should have their life taken away from them over a mistake. If things like medical malpractice/liability and EMTALA aren't reformed it's pointless to give everyone health insurance. It'll pretty much just sink us in a much larger hole then we're currently already in. I know a very good doctor who got sued and had a to pay a huge judgment meaning 7 figures all because he was the first one in the line to treat the patient. The medical board stated well he could have admitted the patient for obs. Anyone can be admitted for obs for anything. You have an ingrown toenail you can be admitted for obs. It didn't matter that she had other people treat her over the next year up until her death the lawyer sued everyone and won against everyone. It was a BS judgment and now this doctor admits people for the most frivolous reasons that make you shake your head all cause he doesn't want to be sued again. This results in significant amounts of waste. There's a statistic that says 90% of the amount spent on someone in healthcare is spent on their last 5 years of life. Curtail that and save significant amounts of cost. There's also a saying the US has 10% of the worlds lawyers yet has 90% of the worlds lawsuits. Curtail that and again you'll reduce overall costs. Healthcare needs to be about cost containment and if you can't contain that cost it'll run out of control and bankrupt the system.

  5. Gravatar for Mike Ferrara

    Brian. Thanks for your comment. All we are asking is when humans make mistakes they accept personal responsibility for the harms they cause. No more and no less. When a kid hits a ball and breaks a window. It was an accident. But his parents pay. That's only fair.

  6. Gravatar for Facebook User

    Sure I'm in agreement that people need to pay for their mistakes but there also needs to be a ceiling on the compensation so it's not out of control and there also needs to be accountability by the patient which is something clearly lacking these days. If we do nothing when the shortage of doctors and other healthcare professionals treating you and I gets worse what are you going to do about it then. Nothing that's what you'll do about it cause it'll be too late. We already see that in some specialties like ER, GI, hand surgery and so on. Some states have already begun to place caps on settlements/judgments so doctors stop leaving those states. This needs to be a federal thing though to protect all healthcare providers better so we continue to have people wanting to be a healthcare providers.

  7. Gravatar for Steve Lombardi

    Brian D'Alessandro: You state clearly patients are not being accountable today. If it's clear then you should be able to name five cases where that is true. Please prove that statement by naming those patients or cases to which you're referring. Thanks.

  8. Gravatar for Facebook User

    I can't say it's clear and that every patient lacks accountability. I can only say about my personal experiences in my dealings with both doctors and patients as to there being malpractice or lack of accountability. Obviously I can't go into specific details do to things like HIPPA. A very vague example of a situation that has occurred is Joe comes into the ER for abd pain. Joe gets up and takes off for whatever reason walking across the street not in a crosswalk and gets hit and killed. Joe ends up having a BAC of .20 which is realized after the fact however Joe is a chronic alcoholic so he's able to walk and talk and act as normal as most of us without any impairment noticed. Hospital, doctor, nurse and everyone else in the chain gets sued having to pay out a significant amount to Joe's family. This to me exemplifies a lack of accountability on Joe's part which I'm sure any decent lawyer can make a jury sniffle and everyone else the bad guy so a jury provides a settlement to Joe's family. I'll do some more research to find actual cases where you can read the specifics and get back to you.

  9. Gravatar for jim O'Hare

    VP med mal claims:

    You cant legislate against mistakes nor gravity. malpractice cant be eradicated and people fall. The small % of med mal that actually turns into a claim, is enough to cause a crisis. The injured should get paid, and they should also get most of the money. I recently settled a case for $500k. The atty fees and costs was $200k. The defense of the case cost $85k. THe premium of the insured was $26k. The total cost to me was roughly $585k, of which the injured rec'd $300k. How many premiums of $26k does the company need to sell, without a reported claim, to break even? What if arbitration totals for the same case cost $400k, with both atty's fees of $50k and the same indemnity? The company now has $185k more in its warchest to indemnify another patient. The cost of healthcare now improves by the effect of that $185k savings. It goes on and on .Good idea? regards Jim

  10. Gravatar for James Cool

    The thing I never hear doctors and health care professionals do is propose a viable alternative to the tort system that does not shut the door on validly injured people (as caps do).

    So...what's your solution?

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