The Cure for What Ails: A Realistic Remedy for the Medical Malpractice "Crisis"
Williams, Alan G., Stanford Law & Policy Review
Doctors hate lawyers. (1) Whether previously subjected to a medical malpractice lawsuit or simply apprehensive that a claim may someday be filed, physicians blame lawyers for what they view as a medical liability system run amok. (2) Physicians believe they should be immune from medical malpractice lawsuits, that only specialized health courts should hear medical malpractice cases, that a no-fault compensation system should be established for all medical malpractice claims, that a higher standard of proof should be required in medical malpractice trials, or, at a minimum, that damages caps should severely restrict the amount plaintiffs may recover in medical malpractice cases that proceed to verdict. (3) Physicians complain of a medical malpractice "crisis" infecting America, causing physicians to retire early, relocate their practices, change practice specialties, accept fewer high-risk patients, or practice "defensive medicine" in an effort to fend off possible malpractice lawsuits. (4)
Physicians, along with healthcare industry representatives, proponents of tort reform, and conservative lawmakers, allege America's medical malpractice crisis fuels exorbitant malpractice insurance premiums, causes younger physicians to migrate away from high-risk specialties, and adds to the sharp escalation of healthcare costs, all resulting from medical malpractice lawsuits flooding the civil justice system. (5) These groups view the likelihood of being sued as simply a random event wholly unrelated to the quality of medical care rendered. (6) They rail against the tort system, pleading for an end to a perceived medical malpractice crisis they view as destroying both the healthcare profession and the delivery of quality medical care. (7)
Conversely, the plaintiffs' bar, patient advocacy groups, and liberal lawmakers claim the problem is not too much litigation, but rather, that America suffers from an unacceptable level of negligent medical care plaguing our healthcare system. They cite studies and statistics in arguing that medical negligence causes as many as 98,000 deaths each year, that hospitals are dens of infection, disease, and substandard medical care, and that all medical malpractice litigation costs combined only amount to 2% of total U.S. healthcare spending. (8) Plaintiffs' lawyers and patient advocacy groups complain that states are unconstitutionally restricting access to the courts by enacting legal hurdles to commencing medical malpractice claims and by capping damages, both economic and non-economic. The plaintiffs' bar loathes evidentiary rules that prohibit the use at trial of otherwise damning admissions offered by a physician subsequent to an adverse medical incident. Plaintiffs--patients--are being squeezed out of a system designed to offer them redress, say plaintiffs' lawyers, relying on studies estimating that each year three times as many Americans die from preventable medical errors as die in automobile accidents. (9)
Who is right? If there is a disease, what exactly is it, and what is the remedy? Countless academicians and policymakers have weighed in on the issue, opining fixes that simply have not gained enough traction for implementation or even testing. (10) State legislatures have applied band-aids, but nothing has come close to remedying the problem. (11) The answer resides in what the "problem" truly is. Identify that, and the solution becomes clear. This Article defines the actual problem afflicting the current medical liability system and explains why previously-suggested fixes have not and/or will not work. Then, this Article breaks new ground by proposing a realistic remedy for the real world of medical malpractice claims, as opposed to previous recommendations that have failed to consider either the political aspects of the issue or the necessity of physician "buy-in" regarding any proposed reform. As the Patient Protection and Affordable Care Act (12) (PPACA) currently awaits its ultimate fate--although upheld by the Supreme Court of the United States, many politicians still call for its repeal--now is the perfect time to propose a realistic federal remedy to standardize medical malpractice claims nationwide. …