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CounterPunch
January
7, 2003
The Malpractice Crisis
By RALPH NADER
Have you been watching the tv news or the tv news
magazine shows lately about the sharp increase in medical malpractice
insurance premiums and agitated physicians walking off their
jobs in some states? If you have, didn't they leave you with
the impression that lawsuits against bad doctors were the cause?
And these poor old insurance companies being forced to raise
those premiums, 30%, 40%, 70% all of a sudden!
Propaganda and slanting the news are
going hand in hand these days, choreographed by the hidden persuaders
hired by the American Medical Association together with the behind-the-scenes
lobbyists of the gouging insurance companies.
Why in the world would some physicians
be willing tools of the insurance  companies who are gouging them regardless
of whether they are competent, caring doctors or the negligent,
incompetent few who account for most of the claims by injured
patients? Part of the answer is that the insurance companies
are scaring many doctors with spectres of litigation volume that
simply does not exist.
Malpractice cases filed and actual payments
in constant dollars have been level for many years; about nine
of ten malpractice harms do not result in any law suits being
filed, according to various studies. Yet the human toll is deadly.
A Harvard study estimated that gross malpractice just in hospitals
takes 80,000 American lives a year plus causing hundreds of thousands
of serious injuries.
Good physicians should delve deeper into
the way medical malpractice insurers do their accounting, their
reserving, and their actual practices. If physicians would total
the entire amount of premiums they paid last year and divide
it evenly by all the physicians practicing in the United States,
the average premium is less than $10,000 per doctor per year.
Very manageable.
So why are some doctors paying $50,000
or $100,000 a year to their malpractice insurers? Because the
companies have learned in the past thirty years to over-classify
their risk pools, thereby reducing their number to specific specialties
like obstetrics or orthopedic surgery in order to charge much
more. In addition, by not surcharging the few bad physicians
in these specialties (known as experience loss rating), the good
specialists pay as much as incompetent ones with a large number
of payouts to their wounded patients.
There is another political benefit for
this kind of over-classification. When obstetricians are gouged,
they scream loudly, threaten not to deliver babies or actually
go on strike. This makes perfect visuals for television ' crying
babies, physicians in their garb blaming trial lawyers, who after
all still have to persuade juries and judges (the latter being
mostly former business lawyers). Meanwhile, the insurance companies
are laughing all the way to the bank.
There are no visuals for the slowly dying
and other human casualties who receive neither justice nor compassion
nor compensation. Nor do people like Donald J. Zuk get any television
time. Mr. Zuk, chief executive of SCPIE Holdings Inc., a leading
malpractice insurer in the west, told the Wall Street Journal
(June 24, 2002) in a very revealing analysis, "I don't like
to hear insurance company executives say it's the tort injury-law
system ' it's self-inflicted."
Neither organized medicine nor the insurance
companies are really going after bad doctoring. The AMA's web
site does not report any data about incompetent or crooked physicians
who give medicine a bad name. And loss prevention is something
the insurance companies leave to professors of insurance to talk
about.
Instead both lobbies are funding and
pressing legislators to enact laws that politicize the courts,
tie the hands of judges and juries ' the only ones who see, hear
and evaluate the evidence before them ' and make it harder for
innocent men, women and children to bring tragic cases to court
and obtain an adequate award.
A favorite way to achieve this callous
goal is to put a $250,000 lifetime cap on pain and suffering.
Apart from the fact that some insurance executives make that
much in one week, every week, from your premium insurance dollars,
consider how such a cap wrecks the innocent in California.
Two year old Steve Olson, now twelve,
became blind and brain-damaged because the hospital refused to
give him a CAT scan that would have detected a growing brain
mass. His mother left her job to take care of her son. A jury
awarded Steven $7.1 million in non-economic compensation for
his life of darkness, pain, and around-the-clock supervision.
But the judge was forced by a California law, that these lobbies
now want Congress to enact nationwide, to reduce the amount to
$250,000.
Don't think for a moment that restricting
your court rights will reduce malpractice premiums for physicians.
Not only have past restrictions not done so, but insurance industry
and company spokespeople have openly said they will not do so
and in some cases have raised premiums right after a state enacted
restrictions.
There is an obligation for the many good
doctors to speak out. Just a few weeks ago, nine of the doctors
who walked out of Wheeling Hospital in West Virginia, had cost
their insurers at least $6.3 million in malpractice claims. Among
the damage they caused , wrote the Charleston Gazette, was operating
on the wrong knee, causing the need for a liver transplant by
leaving a surgical clip on an artery, and causing a massive and
fatal infection by inadvertently slicing into a patient's stomach."
The whole malpractice insurance premium
business amounts to about what this country spends on dog food
and is one half of one percent of health care costs in this country.
Isn't it about time to focus on malpractice prevention first
and foremost, instead of pounding on the rights of hundreds of
thousands of Americans who leave their doctors far worse than
when they greeted them?
If you want to find out more about "questionable
doctors" in your area and how little the state medical licensing
boards are doing to protect you, log on to www.citizen.org/hrg/
For more information on the malpractice
crisis, go to www.centerjd.org
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