Liable to Suffer. (the Malpractice Economist)

Article excerpt

As a Briton, I am used to health service in crisis. Britain now spends only 6 percent of its gross domestic product on health care; America spends 13 percent. British hospital wards are forced to close regularly, doctors work such long hours they, are often unable to think straight, and long-term care for chronic illnesses is of a pitiably low standard. All these are clearly marks of a health care system in crisis, and quite obviously the fault of a system of socialized medical care that demands, in the name of fairness, that only the state may pay for medical care. Americans who visit Britain and have to deal with the National Health Service are glad that the same system does not exist here.

Yet a version of it does. The result is that across large areas of the United States, the American health care system is also in crisis. A few examples should suffice to explain the magnitude of the problem. As Fox News reported in May 2002, "On May 6, most of the obstetricians in Las Vegas adopted a policy of rejecting newly pregnant women as patients, even if the woman was an existing patient." The same month, the Washington Times presented this warning: "You are driving through Mississippi and you develop a serious pain in your side. What do you do? If you are smart, you keep on driving until you reach the border." MSNBC reported early this year that "More than two dozen orthopedic, general and heart surgeons in West Virginia's Northern Panhandle began 30-day leaves of absence Wednesday or planned to begin leaves in the next few days." Even our sports teams are having trouble finding medical care, reported the Miami Herald this spring: "With malpractice rates skyrocketing, many doctors are hesitant to care for professional athletes."

The common theme is the American tort system for medical malpractice. When people feel they have been treated wrongly by a doctor, they sue to redress their grievances. Doctors are therefore concerned about their potential liabilities, which is why the issue is often described in terms of liability rather than tort. Many people are aware of the economic cost of the medical tort system. It has been estimated as costing America $200 billion a year--roughly 2 percent of the nation's gross domestic product. Yet the tort defenders disdain such cold economic analyses. As Leo Boyle, president of the Association of Trial Lawyers of America, puts it, the tort system is all about fairness to the patient: "The negligence of bad doctors and the bad business decisions of insurance companies are not the fault of patients who are mistreated. Yet it is injured patients who will be punished if insurers and doctors succeed in limiting justice to help solve their self-inflicted troubles."

This is a powerful argument that knocks down the economic argument in the minds of the American public. If American tort reform is to succeed, it can only do so by convincing voters that it is in the best interests of patients.

Many of the nation's experts on the issue met at a conference on "Liability and Public Health," organized by the AEI-Brookings Joint Center for Regulatory Studies and the nonpartisan legal reform body Common Good on March 4. The most interesting aspect was the focus on the clinical effects of the liability issue rather than the problem of insanely huge jury awards against physicians, which is so often the focus of the economic argument.

When doctors are afraid they will be sued, there are direct practical consequences. Vast increases in insurance premiums caused the Nevada obstetrician crisis; there was the spectacle of Mississippi doctors moving across the river to Louisiana to escape their state's tort system. Sometimes, however, the system breaks down because too much service is provided. Patients are subjected to unnecessary tests and examinations because doctors fear they will be sued if they miss anything, costing the country $70-120 billion each year.

And there is no room for good bedside manner: Any theory mentioned during conversation can provide the patient with fodder to sue the doctor if something goes wrong. …