The Current Medical Malpractice Crisis

Is the rising cost of malpractice insurance getting in the way of good health care? Are doctors leaving the profession because of high malpractice insurance rates? What needs to be done? Doctors and their insurance companies are suggesting that limits be placed on what a jury can award for medical malpractice. Many doctors say soaring insurance premium rate increases in medical malpractice insurance, some to $200,000 annually from $40,000, are forcing them to close their practices, retire early or double their patient load. A major medical malpractice crisis is unfolding in the United States today. The American Medical Association has identified 18 states in which physicians and institutional health care providers are having grave difficulties obtaining affordable professional liability insurance. In the past two years, insurance premiums in these states have increased dramatically for physicians in high-risk specialties such as obstetrics, emergency medicine, general surgery, surgical subspecialties, and radiology.Under our current system, a patient typically has the unrestricted right to sue his or her doctor for a large amount of money. To protect himself, the doctor attempts to limit this risk in a variety of ways. In addition to purchasing expensive malpractice insurance, a doctor can reduce his exposure to lawsuits by performing redundant and unnecessary diagnostic tests. He can further cut his risk by offering only “mainstream” medical advice and procedures, even when he knows that other treatments would be more appropriate.Putting a cap on malpractice awards may temporarily ease the crisis, but it will not solve the underlying problem. The solution lies not in government cost controls, but in adopting an insurance model that will give doctors and patients more choice in how they define the terms of their relationship. There are no perfect solutions to the current malpractice insurance crisis. No matter what laws are in effect, a certain number of patients and doctors will still wind up in court, and the outcome will not always be fair.The real crisis presented by the breakdown of our medical malpractice litigation and insurance system is that the wrong people are getting most of the money. Often, the people who sue have substantial injuries but dubious liability claims, while many people with legitimate claims can't even assert them. As a result, many doctors are angry and resentful toward patients who bring frivolous claims, and many patients with legitimate but unredressed grievances are disgusted by their lack of access to justice. The sad result is a breakdown in confidence and trust between doctor and patient. And that produces a perception of poor quality health care, as well as a dysfunctional community.A system must be created, whether it is a private mediation/arbitration forum or a government-administered medical small claims court, to meet the needs of those whose claims are not economically interesting enough to attract a qualified lawyer. A place must be found where these minor cases can be aired, claims validated or put to rest, and appropriate compensation sought.

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