Expansion of Medical Malpractice Suits: Is the Court Giving Patients Too Much Power?

RyanD
January 10, 2013

The debate over reform of the system under which people file claims and lawsuits for medical malpractice has raged on for decades with doctors and health care facilities, lawyers, insurance companies and patient advocacy groups all joining the fray at one point or another. If a doctor refers a patient to a specialist who commits an act of malpractice, should the referring doctor be held 100 percent liable for the patient’s injuries?

The debate has raged on for decades over reform of the system under which people file claims and lawsuits for medical malpractice. Doctors, health care facilities, lawyers, insurance companies and patient advocacy groups have debated the merits or need for reform of the current system while health care costs and doctor malpractice insurance rates skyrocket.

For instance, if a doctor refers a patient to a specialist who commits an act of malpractice, should the referring doctor be held 100 percent liable for the patient’s injuries? In states that follow the doctrine of joint and several liability the referring doctor could be forced to pay the full claim if the patient cannot collect from the specialist. Many who support measures to maintain the high level of patient care for which this country has become known would question the fairness of a system that shifts the burden from a negligent doctor to one whose only act was in making a referral.

What is Medical Malpractice?

Medical malpractice is a tort under the law in each state, and a tort is a civil wrong. Medical malpractice is the breach of the duty of care a health care provider owes to a patient. Doctors and other health care providers are expected to provide a level of care in treating a patient that is consistent with the degree of skill expected of a reasonably prudent doctor with the same training and experience acting under similar circumstances.

A doctor who deviates from this standard of care may be found by a civil court to be negligent. If the injuries or damages suffered by the patient can be proven to have been caused by the negligence of the doctor or health care professional, the patient would be entitled to collect damages.

The standard that is used to judge the level of care provided by a doctor takes into account the training and experience of doctors in their field of specialization. Not all doctors are held to the same standard. A specialist is held to the standard for that particular specialty which is why a cardiologist would have a difficult time defending her delivery of a baby in a high-risk pregnancy instead of referring the patient to an obstetrician.

Bad Results

People often confuse medical malpractice with risks that are inherent to certain types of medical treatment and care. For instance, a doctor performing surgery on a patient’s heart may do everything in accordance with normally accepted standards of medical care only to have the patient die. Medical malpractice involves a bad result, but not all bad results are necessarily medical malpractice.

A problem associated with the current medical malpractice system is that it sometimes compensates patients for bad results without evidence of negligence on the part of a doctor. A study by the Harvard School of Public Health found that almost 40 percent of the medical malpractice claims it reviewed did not involve errors by health care professionals, but some of those patients were compensated nonetheless. The study pointed out that cases involving a lack of evidence or errors by health care professionals resulted in significantly lower amounts of compensation than cases with proven errors.

Effects of the Current Medical Malpractice System

Proponents of the current system argue that fear of being sued encourages doctors to maintain high standards in the treatment and care they provide to patients. Opponents respond that the current system of litigation forces doctors to order costly and frequently unnecessary tests and procedures just to confirm a diagnosis or course of treatment in anticipation of a potential malpractice claim.

The Problem of Non-economic Damages

No one associated with the medical malpractice debate questions the rights of patients to be compensated for the losses they suffer as a result of the negligent acts of health care providers. Providing fair compensation to patients for their medical expenses, long-term care, lost earnings and other economic damages associated with the injuries attributable to the medical malpractice is not the focus of opponent of the current litigation system. The focus of the cry for reform of the current system of medical malpractice compensation is for a cap on non-economic damages.

Non-economic damages include pain and suffering and loss of companionship. Multi-million dollar jury awards for non-economic damages are often more indication reflection of the advocacy skills of the plaintiff’s personal injury attorney than they are a reflection of actual damages suffered by the patient.

Proposals to reform the medical malpractice system would place a cap on the amount a jury could award to a plaintiff for non-economic damages. Most proposals for caps have involved limitations based upon set dollar amounts. If adopted, a jury would be free to compensate a plaintiff for the full amount of economic damages that can be proven in court, but non-economic damages could not exceed a limit determined by state law.

Other Suggested Reforms

Eliminating problems in the current medical malpractice system is difficult because it requires changes to the tort laws in 50 states. The medical malpractice inequities that are most ripe for reform are the following:

• Eliminate joint and several liability in those states where the doctrine exists. Joint and several liability allows a plaintiff to collect a judgment from all or just some of the losing defendants without regard to each defendant’s actual negligence. A doctor who may be 10 percent liable for the plaintiff’s injuries could be forced to pay the full amount of the damages awarded by a jury.

• Allow a jury to consider collateral source payments. If a plaintiff receives payments from other insurance that compensates for all or some of the person’s economic damages, many states do not allow a jury to consider that information when deciding how much to award.

Potential Results of Medical Malpractice Reforms

The current system of medical malpractice litigation has increased doctor and hospital insurance rates and driven up health care costs because of doctors defensively ordering tests and diagnostic procedures. Creating a system to fairly compensate patients who are victims of health care negligence without providing unjust monetary windfalls can be done without jeopardizing patient care.

Victims of medical malpractice should seek help from a certified personal injury attorney to see if they have a case, and bring the best results for everyone.