Brian Ardizzoni
Michael Neil
English 1301, Composition 1
25 November 2012

Medical Malpractice For nearly forty years, tort reform constantly becomes an increasingly

controversial issue affecting the medical community, the legal community and most of

all, the victims of some very unfortunate accidents. Tort reform refers to laws passed

on a state-by-state basis which place limits or caps on the type or amount of damages

awarded in personal injury lawsuits. Those who advocate medical malpractice tort

reform believe limitations should be set on the amount of damages a plaintiff or

injured party can be rewarded by the court. These advocates usually include medical

professionals and insurance companies. Their argument is that too many frivolous

lawsuits lead to high malpractice insurance, the increasing cost of medical care and a

burden on the taxpayers whose tax dollars absorb the extravagant litigation costs for

these claims. They believe doctors will eventually be unable to practice medicine due

to costly malpractice insurance premiums which may leave many Americans unable to

obtain much-needed healthcare.

In the past, as the rate of malpractice suits began to grow, so did the rate of

malpractice insurance. This ended up having a dire impact on the medical profession.

For one thing, many qualified doctors ended up leaving their practices and focusing

more on preventative medicine. In other words, they felt compelled to order up costly

tests, many of which that were not necessary, in an attempt to stave off lawsuits

claiming misdiagnoses. The impact on the medical industry as a whole, raises the

cost of medicine and insurance premiums for everyone.

However, according to Stephen Daniels, attorneys also pay for malpractice

insurance and therefore understand the ramifications. You do not see as much

debate over their costs though. What he means, Plaintiffs normally do not have their

own money to do battle with the insurance companies in court. However, these costs

are included in the malpractice insurance for doctors. Significantly, politicians, pundits

and physicians began casting stones against individuals who seek help from the court

system for substandard medical treatment. Campaigns for tort reform re-emerge on the

heels of the recent midterm elections and the controversial federal health care law.

Proponents again champion limitations on medical malpractice cases to protect against

increasing health care costs and a failing health care system. Medical malpractice is a

legal cause of action that affords individual’s compensation to offset the harm from

substandard medical care. The harms typically include serious injuries that forever alter

a victim's life or cause death. Medical malpractice cases seek to offset these harms

through compensating the victim and provide an incentive for medical providers to meet

accepted standards of science.

Annotated Bibliography

Bovbjerg, Mike. “Malpractice Reform in Policy Perspective.” Milbank Quarterly Volume 85, Issue 2 (2007): 297-305. Web

Enacted caps on malpractice awards and proposed early offer reform

address the sometimes excessive verdicts of conventional liability and its very

high overhead costs. However, such reforms greatly benefit medical defendants

while doing too little for claimants or patients in general. Caps and early offer

only affect current claims; far broader reforms are therefore needed to improve

the woeful performance of liability as a general promoter of patient safety and

injury compensation. Broad reforms, however desirable, seldom surmount high

political and practical hurdles. A good, more evenhanded start would seek to

make claims resolution faster, more accurate, more predictable and less

expensive, while separately promoting medical quality and safety as well as

greater transparency for law, medicine and insurance.

This article states that though the medical profession’s held in high regard,

there is public backlash against managed care. The legal system purports to

oversee medical care and later deter substandard care, yet huge problems exist,

though both the number and the size of lawsuits have increased by an order of

magnitude since modern medical liability began to emerge half century ago. This

is the key failure of liability as an injury-reduction system. Liability also fails to

contribute to another aspect of the rule of law, that is, to create a predictable

framework within which people can organize their affairs.

Carroll, Aaron. “The Impact of Defense Expenses in Medical Malpractice Claims.” Journal of Law, Medicine and Ethics. Volume 14 (2012): 135-142. Web

Carroll’s article shows wherever health care reform is debated, the state of

medical professional liability (MPL) system in the United States re-emerges as an

issue if importance. The issues with the MPL system are a point of contention

among the stakeholders groups. Though recent data shows medical liability

premiums flat over the past few years, many agree that medical professional

liability premiums remain unaffordable for many physicians with coverage less

available for certain medical specialties in specific areas of the country.

The objective of this study was to take a closer look at defense-related

expenses for medical malpractice cases over time. They conducted a

retrospective review of medical malpractice claims reported to the Physician

Insurers Association of America's Data Sharing Project with a closing date

between January 1, 1985 and December 31, 2008. On average a medical

malpractice claim costs more than $27,000 to defend. Claims that go to trial are

much more costly to defend than are those that are dropped, withdrawn, or

dismissed. However, since the overwhelming majority of claims are dropped,

withdrawn, or dismissed, the total amount spent to defend them surpasses that

spent on claims that go to trial. Defense attorney expenses account for the

majority of defense-related expenses (74%), while expert witness expenses and

other expenses split the remaining 26%. A strong association was also found

between the average indemnity payment and the amount it costs to defend

individual claims by specialty. The study found that defense-related expenses for

medical malpractice claims are not an insignificant cost. As state and federal

governments debate how to repair the malpractice system, addressing the high

cost of defending claims should not be ignored.

Daniels, Stephen. “It is No Longer Viable From a Practical And Business Standpoint: Damage Caps, hidden Victims and The Declining Interest in Medical Malpractice Cases.” International Journal of the Legal Profession. Volume 17, Issue 1 (2010): 59-82. Web

This article investigates two propositions concerning the effects of a key

tort reform measure in the United States - non-economic damage (i.e., pain and

suffering) caps in medical malpractice cases. The first says plaintiffs' lawyers,

who rely on contingency fees, will stop representing certain clients in such cases.

The second goes farther, saying lawyers will handle fewer malpractice cases

generally. Using survey and interview data from plaintiffs' lawyers in Texas, the

article presents strong evidence for both propositions. In doing so, it provides an

excellent illustration of the theoretical idea of plaintiffs' lawyers as rational actors

constantly adjusting their practices and their businesses to changes in the

working environment.

The value of this article lies in outlining a clear consequence in legal

changes limiting access to the civil justice system. This article demonstrates that

anyone seeking civil action for medical malpractice will find it much more difficult

obtaining representation. It goes on to explain that in most states such as Texas,

California and New York, it will be almost impossible for the average medical

care recipient to obtain recourse against a health care provider. The findings

show how a cap on non-economic damages affects the practices of plaintiffs'

lawyers by limiting damages to a degree that significantly alters the incentive

structure that lies at the heart of the contingency fee system.

Hermer, Laura. “Defensive Medicine, Cost Containment and Reform.” Journal of General Internal Medicine. Volume 25, Issue 5 (2010): 470-473. Web

The role of defensive medicine in driving up health care costs is hotly

contended. Physicians and health policy experts in particular tend to have

sharply divergent views on the subject. Physicians argue that defensive

medicine is a significant driver of health care cost inflation. Policy analysts, on

the other hand, observe that malpractice reform, by itself, will probably not do

much to reduce costs. The article argues that both answers are incomplete.

Ultimately, malpractice reform is a necessary but insufficient component of

medical cost containment. The evidence suggests that defensive medicine

accounts for a small but non-negligible fraction of health care costs. Yet the

traditional medical malpractice reforms that many physicians desire will not

assuage the various pressures that lead providers to overprescribe and

over-treat. These reforms may, nevertheless, be necessary to persuade

physicians to accept necessary changes in their practice patterns as part of the

larger changes to the health care payment and delivery systems that cost

containment requires.

The point of this article demonstrates the link between medical

malpractice reform and cost containment. Most U.S. physicians believe that

defensive medicine, fueled by the present medical malpractice system is a major

driver of excessive health care costs. Yet, many health care analysts argue that

the total contribution of malpractice costs to health care cost inflation overall

amounts to only a miniscule percentage of total health care costs, thus

malpractice reform is unlikely to lead to substantial cost savings. Malpractice

reform is necessary but insufficient component of cost containment. Tort reform

itself will do little to reduce costs. Unless liability concerns are addressed, its

unlikely that most physicians will adopt the systemic strategies needed for cost

control. In addition to the psychological toll medical malpractice takes, the

present malpractice system is highly inefficient. Tort reform needs to occur as an

adjunct to the revision of our health care payment and delivery systems.

Igel, Lee. “The Forgotten Hysteria Over Medical Malpractice.” New York University Journal of Medicine. Volume 47, Issue 6 (2010): 525-528. Web

Lee Igel’s article explores the origins of the medical malpractice crisis and

describes the basic social, economic and political transformations that led to its

emergence and the reasons for its rise. An understanding of these dynamics

explains the gap in awareness about what the doctor/patient relationship is and

what it should be and its correlation to the upsurge in medical malpractice

lawsuits and patient safety programs. The author recommends managing for

and conserving the doctor/patient relationship as the key priority to be tackled in

order to put an end to the crisis and prevent circumstances that further

encourage it.

This articles value lies primarily in the effect modern day medical

malpractice has on physicians and patients alike. The confusion about

patient safety and medical malpractice is extensive with a significant impact

on public safety and health care. Most specific, is the impact on physician and

patient relationships. There is a gap in awareness between the actual

relationship opposed to what it should be. There is little understanding about

the development of this gap as well as the correlation to the upsurge in medical

malpractice lawsuits and patient safety programs. The concept of “managed

care” and its implementation in modern day America correlates directly to an

increase in medical malpractice lawsuits. The malpractice claim is a symptom

of the degradation of the old order of health care. The loss of the traditional

health care created a fear of being abandoned in a world the patient could not

understand and produced a vacuum that led to a search for change.

Nahed, Brian, Maya Babu, Timothy Smith and Robert Heary. “Malpractice Liability and Defensive Medicine.” PLOS One. Volume 7, Issue 6 (2012): 1-7. Web

Nahed, et al article concerning rising healthcare expenditures led to

increased scrutiny of medical practices. As medical liability and malpractice risk

rise to crisis levels, the medical-legal environment contributed to the practice

of defensive medicine as practitioners attempt to mitigate liability risk. High-risk

specialties such as neurosurgery became particularly affected and

neurosurgeons alter their practices to lessen medical-legal risk. They present

the first national survey of American neurosurgeons' perceptions of malpractice

liability and defensive medicine practices.

The value of this article lies in a validated, 51 question online survey

sent to 3,344 practicing U.S. neurosurgeon members of the American

Association of Neurological Surgeons, representing 76% of neurosurgeons in

academic and private practices. A total of 1,028 surveys were completed (31%

response rate) by neurosurgeons representing diverse sub-specialty practices.

Respondents engaged in defensive medicine practices by ordering additional

imaging studies (72%), laboratory tests (67%), referring patients to consultants

(66%), or prescribing medications (40%). Malpractice premiums were

considered a "major or extreme" burden by 64% of respondents, which resulted

in 45% of respondents eliminating high-risk procedures from their practice due to

liability concerns. The conclusion of the article states the concerns and

perceptions about medical liability lead practitioners to practice defensive

medicine. As a result, diagnostic testing, consultations and imaging studies are

ordered to satisfy a perceived legal risk, resulting in higher healthcare

expenditures. To minimize malpractice risk, some neurosurgeons have

eliminated high-risk procedures. Left unchecked, concerns over medical liability

will further defensive medicine practices, limit patient access to care and

increase the cost of healthcare delivery in the United States.

Nelson, Leonard. “Damages Caps in Medical Malpractice Cases.” Milbank Quarterly. Volume 85, Issue 2 (2010): 259-286. Web

This article reviews the empirical literature on the effects of damages caps

and concludes that the better designed studies show that damages caps reduce

liability insurance premiums. The effects of damages caps on defensive

medicine, physicians’ location decisions and the cost of health care to consumers

are less clear. The only study of whether consumers benefit from lower health

insurance premiums as a result of damages caps found no impact. Some state

courts have based decisions declaring damages caps legislation unconstitutional

on the lack of evidence of their effectiveness, thereby ignoring the findings of

conflicting research studies or discounting their relevance. Although courts

should be cautious in rejecting empirical evidence that caps are effective,

legislators should consider whether they benefit consumers enough to justify

limiting tort recoveries for those most seriously injured by malpractice.

The value of this article details damage caps as the most controversial

aspect of malpractice reform. Debate over whether medical malpractice damage

caps have reduced medical malpractice premiums or not still rages on. Nearly all

of the rigorous empirical analysis conducted since 1990 found that malpractice

are lower in the presence of damage caps. Only one study found caps

ineffective in this regard. The effects of damage caps on the practice of

defensive medicine, physician’s location decisions and the cost of health care on

consumers are less clear. The article demonstrates there is evidence of small to

modest effects of damage caps on defensive medicine and some evidence that

caps expand the valuable supply of physicians.

Schoenbaum, Stephen. “Malpractice Reform Must Include Steps To Prevent Medical Injury.” Milbank Annals of Internal Medicine. Volume 140, Issue 1 (2004): 51-54. Web

In the current malpractice insurance crisis, physicians focus their

advocacy and energy primarily on rapidly increasing liability premiums; problems

in access to care; and demands for legal reform, especially caps on damages.

An even more important focus, however, is prevention of injury and improvement

of patient safety. Physicians largely control patient care and can play a critical

role in systematically reducing injury. Reforms should go beyond liability issues;

they should also harness and enhance physicians' ability to act. More visible

efforts by physicians to reduce harm, better communication with patients and

others and true evidence of improved patient safety should reduce patient anger

and litigiousness. Individually and collectively, physicians can and should ensure

that "doing no harm" comes first in the malpractice debate.

This article stresses that more active work on the part of the physicians

to improve care and reduce harm is clearly in the best interest of the public. In a

culture in which physicians actively seek to guard and improve patient safety and

learn from problems, talking with patients. Avoiding liability claims or reaching

reasonable settlements becomes more likely. As the general public grows to

understand health care is much safer, poor outcomes should be seen as less

likely to result from medical error. Anger and litigiousness should decline as well.

The article goes on to state that for all of these reasons, reduction of harm should

be an essential part of any reform of medical liability or reform. Physicians

should devise successful mechanisms to harness their considerable knowledge

and skills to reduce harm. They are most effective when working collectively

within medical organizations along with lawmakers, insurers, hospital

administrators and patients.

Williams, Alan. “The Cure for What Ails, A Realistic Remedy For The Medical Malpractice Crisis.” Stanford Law and Policy Review. Volume 23.2 (2010): 447-521. Web

William’s article provides a brief history of the medical malpractice crisis

and the current landscape of medical negligence from the various parties

perspectives. He goes on to explain the political aspects surrounding the issue

and attempts to address medical malpractice through conventional tort reform

and alternative legal systems. The article also describes efforts by medical

institutions to approach medical malpractice via a reduction of medical errors

strategy. The articles value lies primarily in the effort to summarize non-traditional

approaches to the issue of liability for medical errors. He outlines a

comprehensive solution, if implemented nationally, may fully address the

competing challenges of medical malpractice liability. Between the 1950’s and

1980’s, medical malpractice filings increased by 1000%. During that time, the

dollar amounts awarded by juries rose by more than 275%. Medical malpractice

insurance premiums rose in response to these increases, driving some

physicians to retire, change practice areas to lower risk specialties or refuse to

accept high-risk patients. In response, many states enacted tort reform

legislation in an effort to curb the amount of lawsuits and reduce the amounts

awarded by juries. The tort reform reduced exorbitant medical malpractice

insurance premiums, a benefit to the medical and surgical professions.

Yackee, Susan. “Private Conflict and Policy Passage with Medical Malpractice Reform.” Policy Studies Journal. Volume 37, Issue 2 (2009): 213-231. Web

James Madison’s article argued in Federalist 10 that “rival political

factions” work against the public good. In contrast to Madison's pessimistic

account, Susan’s article suggests that factional conflict can lead to more

representative public policy and thus further the will of the people. She theorizes

that elected officials often seek a safe political position, one that corresponds to

the preferences of the public at large during periods of high conflict. She assess

this theory in one, salient policy area, medical malpractice. The article then goes

on to measure conflict with contributions for state candidates given by (i) the

health and insurance industries, which generally support malpractice laws and (ii)

lawyers, who frequently oppose the laws. The article finds that group conflict

matters to policy outcomes and finds evidence that, under conditions of elevated

conflict, adopted policies are more likely to move toward the general ideological

preferences of the public at large. These results suggest that group conflict

affects both the quantity and character of policy in the American states.

This article explores the role group conflict plays within the passage of

salient public policies in the American states. It theorizes that conflict facilitates

the creation of more representative policy because government officials seek out

a secure political position on salient policies when interest groups are locked in

conflict. This secure position often coincides with the general preferences of a

policymaker's constituency. This argument implies that conflict between

opposing interests does not obstruct, but instead may facilitate policy

convergence toward the public's preferences when policy areas are important.

The article finds limited support for this argument in the policy area of medical

malpractice reform. The conclusion explains that group conflict may enhance the

general ideological representation of citizens under some circumstances.