The Medical Malpractice Insurance Crisis, Again

Abstract

The real crisis presented by the breakdown of our malpractice litigation and insurance system is that the wrong people are getting most of the money. Often, the people who sue have substantial injuries but dubious liability claims, while many people with legitimate claims can't even assert them. As a result, many doctors are angry and resentful toward patients who bring frivolous claims, and many patients with legitimate but unredressed grievances are disgusted by their lack of access to justice. The sad result is a breakdown in confidence and trust between doctor and patient. And that produces a perception of poor quality health care, as well as a dysfunctional community. If you want to understand what this latest malpractice insurance crisis is about, a good way to start would be to dissect that phrase: medical malpractice insurance crisis, because what we are dealing with is, in fact, three separate but related developments. The component is entirely a function of expectations. In the last sixty years, the public's expectations of its health care system have risen dramatically, thanks to advances in science and the longer life expectancy and better quality of life they have delivered. But that generates great anger when the profession fails to deliver. For example, forty years ago, virtually no one sued a neurosurgeon. If you were going to a neurosurgeon, you were almost certainly going to die, and if there was anything the neurosurgeon could do to defer that result, you were enormously grateful. As the technology and capability of neurosurgery developed, expectations of the specialty grew as well. Neurosurgeons at least have the advantage of treating very sick patients, individuals who fully comprehend the gravity of their circumstances. Contrast this with the lot of the obstetrician, whose patients have the same expectation: a happy and healthy baby. They experience the physician's failure to meet that with the greatest imaginable disappointment. It is the distance that the obstetric malpractice plaintiff travels from the reasonable expectation of a perfect outcome to the devastating fact of a neurologically impaired newborn that fuels the intensity of brain damaged baby lawsuits. In this regard, doctors are victims of their own success and their failure, or inability, to communicate to their patients that they can't guarantee a good outcome in every case. The malpractice part of the malpractice insurance crisis is rooted in a flawed system for adjudicating negligence claims for which no one is currently held responsible. For any malpractice claim to move through the courts, be it meritorious or frivolous, the active support of three players is required. First, the potential malpractice plaintiff must find a lawyer. Because of the expense of prosecuting malpractice cases, the typical method for finding a lawyer is the lure of the contingent fee system, whereby plaintiff's lawyers, who are professional gamblers, agree to prosecute an action on behalf of a plaintiff and charge no fee unless the action ends in a financial award. Say what you will about this system, without it no one other than the wealthiest members of our society could use the courts to adjudicate civil grievances. Advocates of the current system argue that the contingent fee system helps discourage cases that lack merit. If plaintiffs' attorneys must invest substantial amounts of time and money in a case, they have a strong motivation to accept only meritorious cases likely to produce a significant recovery. But this is only partly true. Although rational self-interest filters out many potential legal actions, the criteria typically applied by the plaintiffs' counsel to case selection favor less meritorious cases with great economic value over more meritorious claims with limited compensable injury. The second critical player in the malpractice litigation process is the plaintiff's expert. …