Sunday, March 25, 2018

Tort Reform and the Medical Malpractice Myth

By Joseph Grillo

Contrary to popular belief, people do not usually sue when they are injured. This is the lead-in offered by Professor Engel in “The Myth of the Litigious Society, Why We Don’t Sue.” He addresses the confusion associated with an empirically unfounded theory about Americans and the law, that our society is flooded with lawsuits that are frivolous and overwhelming to our legal system. The oft-repeated narrative that personal injury lawsuits and the damages awarded by juries in the United States are out of control is not supported by evidence. Furthermore, the cases reported in the media, such as the infamous McDonald’s Hot Coffee Case, used by tort reform advocates to justify limiting people’s access to civil justice are either outliers or framed in ways that distort the facts and legal reasoning. This myth is both pervasive and durable.

Professor Engel describes what he refers to as “lumping.” These are instances where the victim does not take action to seek compensation from the wrongdoer. Lumping, according to Engel, is not merely refraining from filing lawsuits, but also ‘not confronting the injurer in any significant way to seek redress’ to instead ‘rely on whatever resource – financial, psychological, and spiritual – they can muster on their own’ (page 21).

Professor Engel explores some of the reasons why victims of injuries do not seek legal recourse. Indeed, society often holds a negative view of those who seek compensation, stereotyping them as greedy and deceitful. Professor Engel further explains that the victim’s cognitive abilities may be biased by the injury, leading to irrational thinking. He describes injury as a cultural construct, and what may be compensable is often not seen as an injury due to cultural framing. Dangerous situations leading to injury are perceived to be part of the natural environment and inevitable, so the victim may blame their own carelessness instead of external factors. Finally, deliberate choices made by manufacturers and service providers are seen as unavoidable and thus the blame is again placed on the user. Professor Engel provides a sophisticated and holistic calculus based on physical, psychological, social, cognitive, religious, and moral attributes of injury and response. These comprise the initial construct of a model which describes lumping more accurately than was previously understood. He further explains that these attributes are very much interconnected.

Professor Engel presented empiric data and a framework – all of which was revealing to me. There was a disconnect in my understanding between this information and my (previous) belief system as to the state of the civil legal system. My impression was that the United States was in crisis – in need of “tort reform.” This view was pervasive throughout my colleagues in the medical community and supported by what I heard over years from the media and various politicians.

I recall that, during his second term presidency, President Bush - up on the podium - fervently arguing the necessity for “tort reform.” Congress was urged to enact legislations that would limit recovery in malpractice cases, but also to limit liability for manufacturers of drugs and other medical products – all of this under medical liability reform. According to President Bush, such legislation was necessary because a proliferation of rampant "baseless suits" extending "all across this country" had resulted in high insurance premiums, in the practice of "defensive medicine" by doctors, and in an exodus of doctors from the medical profession. However, given Professor Engel’s evidence of stability in the civil justice system, it would be surprising if either the defensive-medicine claim or the physician-flight claim are capable of withstanding empirical scrutiny.

Advocates of malpractice-liability "reforms" have attempted to shift the blame for increased malpractice premiums onto the civil justice system, and the blame for the lack of access to affordable, quality healthcare in the United States onto malpractice victims and their attorneys.

How could crisis themed in excessiveness and frivolousness exist in a setting of claims lumping? This doesn’t seem to add up. On one hand, the narrative at large is that courts are flooded with claims, many being frivolous. On the other hand, Professor Engel provides sound evidence that injuries seldom make their way to the courts. The equation is -  on one end there is an influx of injury. In turn, some of these are passed into the civil litigation system. Germaine to the former, we know that a large number of injuries do indeed occur. For example, in health care, medical errors account for a disproportional number of accidental deaths. Daniel P. Kessler & Daniel L. Rubinfeld, Empirical Study of the Civil Justice System (Nat'l Bureau of Econ. Research, Working Paper No. 10,825, 2014) Yet, very few of these go to the next step and are actually are passed into civil litigation. The logical inference is that this “crisis,” in large part, is borne of urban legend. The real crisis is that the overwhelming majority of those who are injured are faced with a prospect for redress that seems insurmountable. Yet, the proposed solution at large is to raise the bar by limiting recovery. This appears to be an overt failure on the part of society in favor of the insurance industry. This raises even further concerns. President Bush was either intentionally deceptive, or was unaware of the facts. Also, there might be other variables that I’m not aware of. I might be naïve, but I have generally believed our leaders to be honest, sincere and acting in the best interest of the public. I am left dismayed and perplexed by this.

Medical malpractice, while only one of the injury modes, is certainly reflective of the larger issue of tort reform. Indeed, the debate over medical malpractice law is at the heart of the tort reform movement. The United States is, in fact, suffering from a healthcare crisis. However, contrary to the arguments of those who support tort reform, there is no medical malpractice lawsuit crisis. Instead, there is malpractice insurance crisis. More pointedly, the crisis in malpractice insurance is better stated as a campaign to increase profitability. Advocates of malpractice-liability "reforms" have focused the blame for increased malpractice premiums onto the civil justice system, and the blame for the alarming lack of access to affordable, quality healthcare in the United States onto malpractice victims and their attorneys. The large number of medical errors provides the fuel for the crisis. Of the injured victims, their inability to attain redress completes the loop. This is perhaps at the heart of the crisis. On the other hand, there is no medical malpractice lawsuit crisis. This is an illusion. Overall, the "lawsuit" crisis appears to me to be nothing more than a fraudulent public-relations creation, which is aimed at imposing radical restrictions on common law liability.

Moreover, by joining forces with insurance companies and other healthcare industry giants, physicians and other health care providers have done themselves significant harm. Physicians have missed the opportunity to join with consumers, taxpayers, and the mainstream in an effort to resist ongoing business transformations that limit physicians' day-to-day exercise of medical discretion much more than do the remote possibility of lawsuits. As a result, physicians have lost autonomy, and are controlled by insurance companies. Specifically, reimbursements are under the exclusive control of insurance companies. In turn, these companies are driven by profit and loss. Lower reimbursements have resulted in increased profitability for the insurance companies. At the other end, tort reform embodies the placement of caps on damage awards. So, insurance companies are tightening their grip by limiting the reimbursement for physicians, and under the smoke of “tort reform,” limit the awards to injury victims. This all speaks to the the pursuit of economic gain for the insurance industry. Yet, this is the obvious and rational conclusion. Driven by capitalism, the insurance industry is sociopathic. It has one goal – to perpetually improve its bottom line. It cannot and does not portend to provide an equitable remedy for social injustice. Hence, the fact is that an intact tort liability system remains the principal vehicle for holding healthcare providers accountable for medical errors. Tort law represents a reasonable means for ensuring patient safety. This leaves the civil justice system in the position of being, not only the primary regulatory vehicle for compensating wrongfully injured patients, but also as the principle body charged with deterring medical errors.

Tort reform would further restrict practicing health care providers. On one end, they would continue to be the primary targets of the civil litigation system, while on the other, their poorly placed alliances result in an eroded ability to influence patient outcomes. Overall, this bodes poorly for the health care in general.

Legislatively imposed restrictions on medical malpractice liability will only serve to limit the liability of negligent healthcare providers, to bolster profits of insurance companies without significantly improving the quantity or quality of medical care. Worse still, such restrictions will deprive innocent victims of their right for redress of wrongful injury, and will greatly reduce the capacity of the civil justice system to hold negligent professionals accountable for their wrongful conduct.

Reform of the US tort system as it relates to medical malpractice would take into account a number of variables. First, the practice of defensive medicine is not necessarily bad. While defensive medicine signifies treatments that do not improve the quality of healthcare, my impression has been that, while this may occur, it is not pervasive. Instead, physicians are driven to exercise care and to practice at a skilled level. We are encouraged and often required to maintain Board Certification in our respective disciplines. The requirements are significant. They include a “re-certification exam” taken every ten years along with Continuing Medical Education requirements and other measures. The process is not a trivial one. It requires a commitment of significant time and money.

Further, my experience is that those few physicians who have left medicine have done so due to the restraints and complexities of contemporary practice imposed by insurance companies. For example, one almost requires a degree in computer science to operate effectively. For most of us, malpractice insurance has not been a limiting factor.

It is largely ineffective to have the private insurance industry control outcomes. This is not to cast blame, as they are driven by a system of capitalism. They function as they should – a well-oiled machine that moves forth with momentum, relying on predatory practice and driven by the pursuit of profit. History has taught us that such enterprises are ineffective at doing anything but profit-mongering. They have no stake in doing service to society simply for the sake of doing the right thing. Capitalism, with all of its benefits, is incapable of looking out for the greater good. Therefore, they should not be expected to consume this burden.

The New Zealand system of recompense is attractive for a number of reasons. Hence, my idealized, magical and naïve solution would be to adopt a modified New Zealand system. First, governmental control of special damage awards would allow greater access for injury victims. This would include compensation for living and medical expenses. Many of the psychosocial barriers that Professor Engel describes as barriers to the average injury victim would be reduced or eliminated. A claim for injury would be simpler and without the layers of difficulty that currently burden the injured. More people would have easier access to compensation. Removing the insurance industry from this portion of the equation is necessary. In my view, this is probably the most important first step in finding a solution. Overall, the goal is to remove insurance from the mainstream and away from the decision-making process when it comes to providing for the immediate financial and medical needs of injury victims.

The Federal System, in my view, should also maintain a stronger influence in overseeing medical health care safety. To accomplish this, they may provide incentive for providers who practice competently, avoid committing malpractice, maintain board certification and fulfill other requirements. They should also oversee a system that monitors and reacts to physician errors. Finally, they should seek to minimize errors in health care, perhaps through a sector of the National Institute of Health.

Finally, the tort system should remain in-tact and available for general damage awards such as pain and suffering. The insurance industry would remain viable but would have a reduced footprint and influence. The insurance industry should be federally regulated in as much as setting the upper limits on premiums. In this regard, the goal would be a balance between public interest and reasonable returns for the insurance companies. This would allow a system that remains somewhat respectful to seventh amendment considerations.

It may be construed that to incorporate a federal system would effectively add layers of complexity and inefficiency. Arguably, it might also be an encroachment on seventh amendment rights to the extent that claims are removed from the judicial system, thus denying injury victims access to trial by jury. It may be, however, that as the US population evolves socially, that reform would be a natural byproduct.

Perhaps the first step in reforming our legal system is a deeper discernment of who we are as a society. This might include recognition that perhaps the social conscious is not as “evolved” as we might like to think. For instance, it was not too long ago, and during my youth, that African Americans were regarded by the mainstream as being an inferior race. Their rights were restricted. During that time, a legal system based on deterrence, corrective justice and punishment were reflective of societal awareness. In the modern era, however, society is more inclined than previous towards racial and gender inclusion and equity. While far from perfect, some gains have been made. On multiple fronts, the boundaries of what was deemed acceptable some years ago would be considered deplorable according to present day standards. In all cases, the modest gains of today were not simply handed over by the “moral majority” – they were hard-fought. This may well require that our legal playbook be updated to reflect contemporary consciousness. Certainly, this may include reaffirmation of the goal of the civil litigation system - that being to serve all of our people, while at the same time, it is not to line the pockets of insurance. The function of the civil litigation system is to serve society – not of years past, but of present day. If this be the case, then to allow private insurance to remain at the forefront of the charge will continue to be deleterious. The only certainty within this paradigm is that their profits will perpetually increase, at the expense of all else.

The continued evolution of social consciousness appears to be take place at a generational pace. To this regard, Professor Engel has made significant contribution. He effectively argues that we are all interconnected, and so are our minds, thoughts and emotions. He offers a model of injury and response based on a holistic view of the human, who is at the heart of the injury. Professor Engel articulately describes the effect of trauma on the emotional and cognitive function. All of this begs for a solution in which society more effectively cares for the needs of the injury victim.

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