Numerous reports have come out as of late, suggesting that new research debunks the idea that high malpractice payouts are significant factors in the cost of medical professional liability insurance premiums. These studies often point out situations where the number of malpractice suits remained the same or declined over a period of time and/or where malpractice payouts remained even or declined while malpractice insurance premiums nevertheless continued to increase.
Further, some of these reports attempt to use anecdotal evidence, such as the history of the anesthesiology field* in the 70s and 80, to not-so-subtly hint that massive and frequent malpractice payouts are an effective deterrent to malpractice. The suggestion is that they serve to reduce the amount of malpractice cases by inspiring doctors, and the industry as a whole to better, safer practices and a higher level of performance.
Of course, on the face of it, this seems somewhat offensive in that it implies that doctors, by and large, will only give their patients proper care in the face of the threat of financial and personal ruin. But to be fair, consequences for negligent behavior are a normal part of any area of life in a civilized society. Doctors may not need to be particularly targeted, but neither should there be no accountability.
Yet, there does seem to be another problem with many of these reports, and indeed with the anti-tort reform bias that seems to permeate them. Even if it can be shown that caps on liability payouts, and reduced frequency and ease of bringing malpractice claims don’t necessarily or automatically lower premiums substantially (something that is harder to show than some of these reports indicate, many of which seem to equivocate between correlation and causation), does that really mean that tort reform is not worthwhile?
Fluctuations in the cost of malpractice premiums are a complex matter affected by everything from the ever-shifting legal landscape created by new laws and statutes, to uncertainty in the marketplace, to the number of physicians practicing, to projected losses incurred, and much more. However, providing reasonable boundaries on the ability of individuals to sue doctors and medical professionals, and pursuing a fair standard for the amount they can sue for isn’t only about reducing malpractice premiums—it’s about fairness, justice, and equity.
While we all want those who suffer due to someone else’s gross negligence to be compensated, and we all want to see victims have a voice, we don’t want to make a new class of victims in the process. A system where a person can sue any doctor for almost any reason (often suing every doctor that could conceivably have a connection to an alleged incident in order to ‘broaden the net’) with minimal consequences and the potential to be awarded extraordinary sums of money is no more just than a system where those who are responsible for the care of others are not held responsible for negligence resulting in harm.
Whether tort reform is the answer to the rising costs of healthcare and high malpractice premiums or not (it’s doubtful anyone ever thought it was the only answer), it seems that a healthy balance between doctors being held accountable and frivolous and excessive litigation is a key to maintaining a fundamental element of justice in our nation’s health care system. So, while perhaps large malpractice payouts are not the prime cause of rising malpractice premiums and health care costs they are sometimes imagined to be, the new research being presented does not mean that we need to stop talking about payouts and the importance of tort reform.
