Legal News

Cutting Through the Debate on Medical Malpractice

By Ashby Jones

We’re a big fan of pieces that attempt to cut through all the noise and clutter of a moment’s given political debate and deliver a handful of salient, well-supported conclusions. We often come away feeling like the writer has performed a public service, even if the conclusions aren’t neat or tidy or easily squeezed into politically expedient soundbites.

Over at the NYT, David Leohnardt has attempted this on Wednesday with a piece about medical malpractice. It strikes us as a worthy read — one that both liberals and conservatives might find reason to both cheer and jeer.

Leonhardt’s takeaway is twofold:

The direct costs of malpractice lawsuits - jury awards, settlements and the like - are such a minuscule part of health spending that they barely merit discussion, economists say. But that doesn't mean the malpractice system is working.

On the first point, Leonardt explains that “the fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment,” $60 billion worth of wasteful spending, to be precise.

But, continues Leonhardt, the main downside of the system isn’t necessarily financial, but psychological. “The malpractice system does affect the morale of doctors. It leaves them wondering when they will be publicly accused of doing the very thing they've sworn not to do: harm patients. . . . You can understand why such experiences would lead doctors to order extra tests and treatments.”

At the same time, writes Leonhardt, the current system isn’t doing enough to curb incidence of malpractice.

After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim. . . . Medical errors happen more frequently here than in other rich countries, as the Robert Wood Johnson Foundation recently found. Only a tiny share of victims receive compensation.

The bottom line, Leonhardt seems to think, is that malpractice and the way it’s treated is important, but not, by a longshot, the only problem with our health-care system. Nor is it even the main one. He quotes Dana Goldman, director of the Schaeffer Center for Health Policy at the University of Southern California, adds: "It is one of the things we need to address if we want to bend the cost curve. But it's not going to solve the problem."

At the end of the day, Leonhardt pushes to find ways to reduce medical malpractice to begin with, pay for studies on which treatments actually work for certain diseases and treat harshly those practitioners who make repeated errors. In exchange, Leonhardt would accept a “less confrontational, less costly process for those doctors who, like all of us, sometimes make mistakes.”

Full post as published by Law Blog - WSJ.com on September 23, 2009 (boomark / email).