MEDICAL MALPRACTICE INSURANCE: REASONS FOR DEFENSIVE MEDICINE & LOWER MD LIABILITY PREMIUMS and Fewer Lawsuits
One of the consequences of tort law is that courts can find a physician liable for a host of things. The problem with the justice system in the United States is that despite a doctor's ethical actions based on science or the best of diagnostic procedures determined by a panel of doctors, a physician can be held liable for what the court deems an error. A jury can view something as a medical error even if the professional medical community does not. There are no caps on malpractice lawsuits. This creates an atmosphere of what is referred to as "defensive medicine.
Though hard to put a figure on, the generally accepted estimate of the annual cost for ordering lab tests, images, or prescription medicine that is not necessary, but in an attempt to avoid a lawsuit, is somewhere between 100 and 200 billion dollars annually. An extension of defensive medicine is the practice of limiting high risk patients and high risk procedures.
An example of the desire to protect oneself from the remote possibility of lawsuit is requirements for accepting lab tests at different medical facilities. A person can have more than month old imaging results involving bone and be required to have all the same lab procedures done again before treating. In many cases, defensive medicine policies preclude the possibility of the patient waiving the right to sue. In case after case, this re-imaging or lab testing is not medically necessary.This creates a huge expense to the health care system.
When Congress discusses the health care crisis, defensive medicine is a topic avoided. Defensive medicine is something that doctors have to deal with daily. Those of you who have required many diagnostic tests in or out of a hospital know that duplicating lab tests can easily run thousands of dollars! In addition, we have become used to seeing outrageous bills for medical service, not remotely like any other service we seek. Require a listing of all procedures and their cost - I have caught many errors where lab tests not performed were charged. We must be vigilant to do our part in lowering health care costs.
LEGAL SHARE OF MEDICAL EXPENSES
Studies have shown that 60% of the expense of medical treatment comes from lawyers' fees, administration (paper work to avoid malpractice lawsuits), and insurance. Even considering the lowest figures related to percentage of cost of health care from lawyers and administrative costs at 1-2%, we are talking about 20 billion dollars. A billion here, a billion there and before you know it you're talking some real money!!
From Wikipedia, "Tort is a system compensating wrongs and harm done by one party to another's person, property, or other protected interests". Accusations of medical wrongs are evaluated by judge and jury. One suggestion has been to have "health courts" or "medical courts". With malpractice suits, this special court would be made up of judges who are trained in medicine. It is believed that these health courts would lower settlements due to the fact that they would rule on cases based on accepted medical practice and ethics, and be less influenced by emotion than juries of citizens.
The inspiration for this kind of court comes from many aspects of litigation!! One aspect that many people are familiar with is the practice of lawyers getting 30% of the take in malpractice suits. By setting such a standard, there is an incentive for the lawyer to fight for every "conceivable" (trivial) point that could possibly lend itself to a bigger pay out. By deduction that means the introduction of as many reasons as possible physicians or hospitals committed error. These discoveries can be trivial and result in lengthy court trials costing the taxpayer and medical community millions of dollars and this figures in when determining health care insurance premiums. Other countries, most notably the European Union consider this practice un-ethical.
Many experts feel that requiring the loser of a trial to pay defendant and plaintiff expenses (also known as the English Rule) would discourage a large number of trivial malpractice cases, which in turn would lower physician's insurance rates, which in turn should lower fees. The United States has no caps on medical lawsuit damages. In Texas, where in 2003 medical caps were placed on medical malpractice insurance, premiums decreased 23%. These experiments have shown the same results in other states who have ruled to institute malpractice caps. I believe that such state experiments would prove the efficacy of "health courts," also.
Americans spend 2.5 trillion dollars annually on health care. Clearly, eliminating many of the abusive legal situations the medical field encounters will not solve our problem with health related bills. But taken as a significant piece of the puzzle along with: the importation of foreign pharmaceuticals, incentives for foreign doctors who can pass our medical boards, a health corps made up of volunteers similar to military medical service, increasing the number of medical students admitted to medical schools, ending free medical care for illegal aliens, perhaps an elimination of the AMA suggested fee schedule, a more vibrant questioning of common practices in charging, and a host of other things, we could easily increase the chances of 46 million un-insured American citizens to afford health insurance. The problem has become solely a political one. Both political parties have elbow benders influencing their decisions. Oh, did I mention that the top donors to the Democratic Party are trial lawyers?
Do you believe U.S. malpractice liability law is responsible for high medical costs?
Malpractice Insurance - A Video
© 2011 John R Wilsdon