Independent Analysis of Malpractice Debate Calls Clash Between Doctors and Lawyers a Red Herring, USA

Main Category: Litigation / Medical Malpractice
Article Date: 29 Apr 2005 - 12:00 PDT

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Study Faults US Malpractice System for Skyrocketing Malpractice Costs -

Tired of the war mongering between doctors and lawyers groups accusing each other of being responsible for rapidly rising malpractice costs, the independent nonprofit group CodeBlueNow! today issued a Malpractice Fact Sheet that describes the current debate over medical malpractice and damage caps. According to CodeBlueNow!'s analysis, the real malpractice "crisis" is about fundamental flaws in the American malpractice system.

The CodeBlueNow! Malpractice Fact Sheet can be found online at codebluenow.org/pdf/malpractice-facts.

"The problem with the current debate is that neither the doctors nor the lawyers in the current debate speak for the citizen consumer," says Kathleen O'Connor, Founder and CEO of CodeBlueNow!. "When consumers become victims of unavoidable or avoidable medical error, they need to be compensated for medical expenses, wage loss and other direct damages in a fair, efficient and timely manner. It's our malpractice system and its reliance on fault that are responsible for increasing damage awards and costly defensive medicine on the part of physicians."

The American malpractice system relies on fault. It requires the injured victim and their attorney to allege fault and to accuse the medical provider of substandard medicine. The system requires the medical provider and their attorney to defend against these charges -- which, in turn, motivates the provider to conceal rather than document mistakes -- and to practice defensive medicine. Having providers conceal their errors is antithetical to quality improvement programs, which require the diligent identification of individual and system errors to establish proper corrective actions. The provider's practice of defensive medicine is not only costly; it exposes patients to medically unnecessary treatment.

Troyen Brennan, professor of Medicine, Law and Public Health at Harvard, and others who have studied the performance of the medical malpractice system with respect to these consumer objectives, have found the American malpractice system to be woefully inadequate. The majority of malpractice system dollars do not go to victims of medical error, but to plaintiff and defense attorneys, insurers, expert witnesses, and so forth. Brennan's studies also show that the vast majority of medical error victims do not file medical malpractice suits. Finally, the small minority that do sue and receive compensation are likely to be victims of actual medical error, although the system does sometimes reward individuals who are not in fact victims.

"There is no evidence that the American fault-based system motivates healthcare providers to practice better medicine. A no-fault based medical injury compensation system modeled after the American workers compensation system or New Zealand's governmental medical injury compensation program seems to require greater attention in the current debate. They are far more advantageous to citizen consumers who become medical injury victims. These individuals are not looking for someone to blame following suffering of medical injury, they are simply looking for appropriate compensation," O'Connor stresses.

The Malpractice Fact Sheet is the second in a series. The first was on the Medicare Prescription Drug Bill. Coming next is Medicaid. All Fact Sheets are available for downloading from the CodeBlueNow! website: codebluenow.com/news.html#factsheets

About CodeBlueNow!

CodeBlueNow! is a non-partisan, national 501(c)3 non-profit organization that is mobilizing grassroots efforts to transform the financing, delivery and management of the American health care system, by assuring that the public has a voice in shaping health care policy. The organization has grown from 30 people in October 2003 to having thousands of supporters in 46 states and an online radio show. More information is online at: http://www.codebluenow.org.