{"id":54451,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/when-president-obama-turns-his-attention-to-health-care-reform-to-what-extent.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"when-president-obama-turns-his-attention-to-health-care-reform-to-what-extent","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/when-president-obama-turns-his-attention-to-health-care-reform-to-what-extent.html","title":{"rendered":"When President Obama Turns His Attention to Health Care Reform, To What Extent…"},"content":{"rendered":"\n
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When President Obama Turns His Attention to Health Care Reform, To What Extent Should He Focus on Medical Malpractice Liability? Part One in a Two-Part Series of Columns<\/h1><\/td>\n <\/tr>\n

By ANTHONY J. SEBOK <\/h2>
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Tuesday, Feb. 10, 2009<\/td>\n\n <\/tr>\n <\/table>\n\n\n

At the moment, health care reform is going to have to wait for other, more pressing problems to be resolved by the Obama Administration.\u00a0 In my opinion, the loss of Tom Daschle is less important than many people seem to think, but any delay in getting a new health care czar will mean that real reform will be months, if not years, away.<\/p>\n\n

Once Obama turns his attention to health care reform, what role, if any, will medical malpractice liability reform play?\u00a0 This is not any idle question.\u00a0 The ill-fated Clinton health care proposal from the early \u201890\u2019s proposed shifting liability from doctors to managed care organizations (MCOs).\u00a0 Moreover, the idea that there might be a trade-off between the right to sue and universal health care is hardly new; it is a reality in Scandinavian countries and in New Zealand.<\/p>\n

In order to understand the choices that will really face Obama and his health care czar, we have to clear away a few misconceptions about the relationship between the medical malpractice system and health care costs.\u00a0 In this column, I\u2019ll debunk several leading myths in this area.<\/p>\n\n \n\n\n \n

The First Myth: Medical Malpractice Liability Costs Are Driving the Increase in Health Care Costs<\/strong>\n<\/p>

First, there is a myth that medical malpractice liability costs are a major cause of increases in health care costs.\u00a0 There is no evidence for this claim.\u00a0 The portion of health care costs that go towards liability costs (the costs of insurance and of administration) is quite small\u2014a few percentage points.\u00a0 The costs may appear large to certain doctors who pay high medical malpractice insurance premiums, but the reality is that the total cost of liability for medical error is quite small.<\/p>\n

I want to stress that the cost of medical error itself may not be small.\u00a0 Rather, what is small is just the cost of insuring against lawsuits based on allegations of medical error, when compared to health care costs overall.\u00a0 In fact, if recent studies by the Harvard Medical School are to be believed, the vast majority of medical errors are never reported and never compensated.\u00a0 They result in costs that are borne by the victims of those errors.\u00a0 But that is a social cost, not a cost contributing to the total financial cost of the medical liability system.<\/p>\n

The Second Myth:\u00a0 The Tort System Does a Poor Job of Figuring Out If Medical Malpractice Occurred and, If It Did, What It Cost<\/strong><\/p>\n

The second major myth is that there is a lot error in the adjudication of medical error when it is alleged.\u00a0 To the contrary, the same Harvard Medical School study that I cited above concluded that the medical malpractice \u201csystem\u201d is very good at (1) filtering out groundless claims and (2) paying less for lesser claims.\u00a0 So the system is actually pretty good at recognizing meritorious victims and providing redress commensurate with the injuries they suffered.<\/p>\n

When These Myths are Debunked, What Is the True State of the Medical Malpractice Compensation System? <\/strong><\/p>\n

All of the above tells us that the system is not too expensive (yet) and that it doesn\u2019t pay money to undeserving claimants.\u00a0\u00a0 But some possible problems remain:\u00a0 The system might still be (1) expensive relative to the alternatives, (2) bad at deterrence, and (3) relatively useless, because it reaches too few people.\u00a0 Let\u2019s take each complaint in turn:<\/p>\n

Of course the system is expensive \u2013 but that is largely because this is a job that it is costly to do right.\u00a0 It is well-known that \u201cadversarial legalism,\u201d which is how social scientists characterize the common law of medical malpractice, is expensive compared to (for example) a no-fault insurance scheme.\u00a0 The whole point of common law negligence is to figure out things about which insurance is indifferent\u2014for example, did the doctor \u201ccause\u201d the injury as a result of a breach of the \u201cstandard of care?\u201d\u00a0 Answering such a question requires expert opinions (often in duplicate), depositions, and courtroom testimony\u2014all of which can be time-consuming and expensive.\u00a0 But there is no substitute for a lawsuit and all its attendant costs if you want to get to the truth of whether the claimant was, in fact, injured due to a physician\u2019s negligence.<\/p>\n

It is less obvious that a system that is, in theory, good at identifying negligence would be bad at deterring negligence.\u00a0 But there is no reason to assume that the former is entailed by the latter.\u00a0 If medical negligence is error produced in the course of repetitious conduct, as Mark Grady has argued, then there will always be an irreducible level of \u201ccompliance error\u201d in most of medicine\u2014error that cannot be deterred.\u00a0 However, it will also be the case that episodes of inadvertent compliance error will be indistinguishable from advertent error \u2013 error that can be deterred.\u00a0 Thus, negligence (which focuses on the doctor\u2019s fault or lack thereof) will collapse into strict liability (which would impose damages regardless of the doctor\u2019s fault), for all intents and purposes, and the deterrence signal of medical malpractice judgments will be lost.<\/p>\n

Third, and finally, if the Harvard Medical School study is to be believed, the real problem is that most malpractice is never recognized and is certainly never reported or used as the basis of a claim for compensation.\u00a0 The real problem with this fact is not that lots of deserving victims are left uncompensated.\u00a0 It is this:\u00a0 What would happen if all of the uncompensated victims actually sued to collect the amount of damage due to them \u2014how could the system survive the onslaught of claims?<\/p>\n

Another Myth:\u00a0 The Medical Malpractice System Suffers From a Problem We Can Fix<\/strong><\/p>\n

The myth about medical malpractice liability is that it can be made cheaper, that it can make medicine safer, and that it can be extended to cover most victims.\u00a0 This is a myth because the last thing we would want to do right now is expand the reach of medical malpractice.\u00a0 If we did so, we would only get an ever-more costly system of compensation without commensurate safety gains.<\/p>\n

Medical malpractice in its current form does not have a \u201cproblem\u201d that can be fixed.\u00a0 It does what it is designed to do, which is to provide fine-grained corrective justice for a few people at great expense.\u00a0 These characteristics are not evidence of the flaws of the medical malpractice system, but of its specific characteristics.\u00a0 One would not criticize a hand-crafted tool for being expensive and hard to mass-produce.\u00a0 Similarly, one should not criticize the common law of medical malpractice for being expensive and hard to mass-produce for all those who might need it.<\/p>\n

Does this mean that a universal health care plan, which is supposed to be inexpensive and built for mass use, is incompatible with the tort law of medical malpractice that has developed since the 1800\u2019s?\u00a0 That question will be the subject of my next column, Part Two of this series.<\/p>\n

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\n\n\n<\/a>\nAnthony J. Sebok, a FindLaw columnist, is a Professor at Benjamin N. Cardozo School of Law in New York City. His other columns on tort issues may be found in the archive of his columns on this site. \n

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