Take a look at the back of your phone book. Chances are there is an advertisement from an attorney who would like you to consider whether you may be a victim of medical malpractice. If you think maybe you have been, you can call for a free consultation.
Have you recently received medical care? Was the outcome less than ideal? Maybe, just maybe, if something had been done differently, the outcome would have been better. And maybe a jury could be convinced of that and award you a sizable sum of money - of which the attorney would take perhaps 40% plus expenses.
As you have surely noticed, tort reform has been a hot topic for many years. A "tort" is a civil wrong, and an alleged tort is the basis for a civil liability lawsuit. There are many things wrong with our tort system, and enumerating them could fill this entire essay. One of them, perhaps the most fundamental, is the implicit assumption held by so many people that if something bad happens, it must be someone's fault, and that person (or entity) should be made to pay. So, if you slip and fall, that's an accident. But if you slip and fall on property owned by someone else, and that someone else has liability insurance, there ought to be a way to show that person was somehow at fault and should pay damages. Even if the accident was really no one's fault, you may well be able to collect some money because the insurance company finds it cheaper to give you money than to litigate.
When the alleged tort is a negligent act in the provision of health care by a doctor, that is called a medical malpractice claim. What doctors and lawyers are taught is that proof of medical malpractice requires (1) a duty on the part of the physician toward the patient (which exists when there is a doctor-patient relationship); (2) a breach of duty (meaning negligence in the provision of care); (3) damages (harm to the patient); and (4) causation (the negligent, or substandard, care caused the harm to the patient).
That's what it says in the textbooks. That's not how it works in real life. All that is necessary is to convince a jury that maybe, just maybe, if something had been done differently, the less-than-ideal outcome would have been somewhat better.
As you can imagine, when people get sick or hurt and seek medical care, it is quite common for outcomes to be less than ideal. If people sued every time this happened, and every case went to trial, our court system would have no capacity for any other kinds of cases. The entire court system would be overwhelmed with medical negligence claims and couldn't possibly handle them all.
The fact that this isn't the situation is testament that common sense is at least somewhat common, and most people realize that when bad things happen it isn't always someone's fault.
But claims of medical negligence are common, and people sue. The attorneys representing the plaintiffs believe this is good. First I will tell you why they think that, and then I will tell you why they are wrong.
Lawyers have a different way of looking at the world from most of the rest of us. (I don't have any studies to prove this. I am simply expressing an opinion I have formed from many years of observation.) My perspective on human nature, which I believe is shared by most people, is that people are basically good, and we are raised with ethical and moral values that guide us toward doing the right thing. And the values with which we were raised serve as guideposts that we strive to follow in everything we do as we go through life. Certainly we make mistakes from time to time, but we try to live up to the principles we've been taught, whether they are grounded in religion, canons of ethics, secular humanism, or any other system for modeling human behavior.
Lawyers, on the other hand, believe that these systems are all abysmal failures, and that people do the right thing, and refrain from doing the wrong thing, primarily (or exclusively) because of a fear of legal consequences. We behave properly, and refrain from both criminal and civil wrongs, only because we fear being charged with crimes, tried and incarcerated, or sued and impoverished if we don't have adequate liability insurance coverage.
With this perspective on our society, it is easy to see why they believe that the right to sue is one of our most important legal rights, and anything that fetters that right in any way (such as a limit on how much money a jury can award for pain and suffering, also called "non-economic damages") is unacceptable.
Why are they wrong? Why is the proliferation of medical negligence claims not a good thing?
I'll start with something you've heard about - and about which I've written in this blog before: defensive medicine. This means doctors ordering tests they think are not really necessary but which will help, in the event of a bad outcome and a medical negligence claim, to show that they were being diligent and thorough. In other words, because any time a patient has a serious or complicated problem, we realize we might be sued if, despite our best efforts, things don't go well, and so we are preemptively building a case for the defense. This is an expensive way to practice medicine. How expensive is an open question, and certainly a matter of controversy, as I've described in earlier essays.
The second reason, and one which I think is the most important, is that our medical tort system doesn't do what it's supposed to do. The system should accurately identify patients who have been harmed by avoidable medical error, fairly evaluate the economic damages, and compensate the patients accordingly. Substantial research shows this is not happening. Many people get money in the absence of real damages (!), or get an amount of money in no way commensurate with damages. Simultaneously, many patients deserving of compensation don't get it. And many people who would be compensated if we had in place a system that worked properly never realize they were harmed by avoidable medical error and never seek compensation. Oh, and by the way, a very large share of the money that is paid out by insurance companies goes not to patients but to lawyers.
The third reason is that our present system poisons the doctor-patient relationship. Doctors see every encounter with every patient as a lawsuit waiting to happen. I could write a very lengthy essay on the pernicious ways in which this damages the very human interaction that takes place between patient and physician. Suffice it to say that it is evil.
Yes, evil. I used that word in the title, and again here, because it is provocative. Like Ronald Reagan's phrase "evil empire" or GW Bush's "axis of evil." It makes people of opposing viewpoint bristle. Attorneys who represent medical malpractice plaintiffs will bristle at the use of the word to describe their phone book advertising. That's OK with me. Because I think most everybody else looks at the world differently and will understand what I mean.
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