Reconsidering the case for 'tort reform'

The current furor over medical malpractice continues to represent little more than the trite, ineffectual harangues of greedy insurance companies and deceived medical practitioners. On Jan. 16, President Bush spoke in Scranton, PA. about the current crisis in medical malpractice and trotted out the standard disavowal that medical malpractice represents any serious problem and that trial lawyers have simply blown the whole thing out of proportion, aided by our "litigious" society. Like most appeals to reform medical practice through measures like "tort reform," the President's arguments were long on rhetoric and short on facts.

In the Feb. 7 edition of the 'Prince,' an account of work slowdowns by New Jersey doctors painted a typical picture of doctors and insurers clamoring for caps on jury awards, with Dr. Ariel Abud bemoaning the skyrocketing prices for malpractice insurance. The report raises the specter that doctors may choose not to practice in New Jersey to avoid the high cost of insurance. Many doctors have felt a similar crunch, but the real question is: From whom does this pressure originate?

First off, averaging the total amount spent on insurance premiums over all practicing physicians yields a mean premium of $10,000 per physician.

.....Why do some practitioners pay five to ten times that much? To start off, insurance companies engage in a well-documented practice of over-classifying doctors (for example, grouping together obstetrics and orthopedics), which distorts the differences between specialties and the relative costs of insurance for each specialty. To make matters worse, insurers (and medical associations, like the American Medical Association) make no effort to surcharge the few chronically bad doctors who account for most medical malpractice. According to the Charleston Gazette, at one walkout in a West Virginia hospital nine of the doctors refusing to work had accounted for $6.3 million in insurance claims, damages which included operating on the wrong knee, leaving a surgical clip on an artery, and piercing a patient's stomach causing mass infection.

The systematic problems introduced by insurance companies lead to the ludicrous occurrences like the aforementioned instance in West Virginia. But they also allow insurance companies to brandish the threat of massive amounts of litigation above physicians' heads. When President Bush laments the fact that "everyone is suing" in this day and age, he plays on deep-rooted American sentiments wrought by a sensationalist media and ideologically driven pundits. One can hardly blink an eye without being blitzed by the latest lawsuit against McDonald's, it seems. But again, the data lend no support to the President's claim. In New York, eight times as many patients are injured by malpractice than the number that actually file a claim and 16 times as many patients suffer injuries as the number that actually receive any compensation, according to Patients, Doctors, and Lawyer, a study by a Harvard medical practice group. Meanwhile, the National Center for State Courts reports no increase in the volume of malpractice cases in a study of 14 states. Most damning, a 2000 study by the Department of Justice revealed little or no difference in insurance rates between states with draconian tort restrictions and those with little or no restrictions. Recently Nevada and Ohio both adopted strong caps on malpractice compensation and insurance companies responded by declining to lower rates.

Harvard physicians have estimated that medical malpractice claims over 80,000 lives a year and, even ten years ago, cost citizens $60 billion per year. In the days of Hippocrates, healers swore to keep patients from harm and injustice. Americans today deserve the same consideration from their doctors and the insurance companies that lord over the medical practice. Continuing to allow duplicitous accounting by insurers shields incompetent doctors from accountability, and with the perpetuation of a big businesses-driven myth about the threats litigation, the mire of medical malpractice will only further submerge the noble calling of the first professional physicians.

Jonathan W. Jew-Lim is a history major from Palo Alto, Calif.