Fear of malpractice lawsuits with supposedly growing payouts in a litigious society have led doctors to leave states with high malpractice premiums, lobby to enact non-economic damage caps (“pain and suffering”), practice “defensive” medicine (order generally unnecessary tests that they would not generally order except to prove disease X is not present, even though it is usually vanishingly rare). These are concerns because malpractice premiums the doctors pay in many states have skyrocketed .

There’s reason to believe, however, that perhaps there aren’t growing payments or settlements in medical malpractice. Let’s take a look at this Public Citizen report on MedMal trends :

So the payouts aren’t bigger, and there aren’t more judgments or settlements.

But doctors are instead seeing plenty of lawsuits filed. Even though 4 of 10 are dismissed because they are groundless , the accusation that a doctor performed malpractice costs more than just time and money; it takes a mental and emotional toll on the physician as well. No one likes to get sued, of course, but physicians have dedicated their lives to helping people, and have gone through enormous personal sacrifice to do so. And even if the suits are being thrown out, the media publicizes big payouts, making recall bias a problem as well. Even with all that said, only 1-in-8 damaged actually sue , if you can believe it.

Perhaps, however, doctors aren’t effectively disciplining their own. The same Public Citizen report shows only 1/3 of doctors with 10 or more malpractice payouts against them were disciplined by their State Medical Boards:

And so, as I said, doctors have lobbied for damage caps. As this GAO report suggests , it may be working to slow premium increases. This report also suggests that in many of the “problem states” with high malpractice costs, doctors are either leaving the state or leaving a particular practice because of costs, leaving both Emergency and Newborn care at risk. A rural Pennsylvania hospital no longer has an Orthopedics department because their orthopedists left. This is clearly not satisfactory for the patients this hospital serves.

Another problem–when and if a case does make it to trial, it simply turns into a he said-she said, in a Battle Royale of expert witnesses. Plaintiffs’ bring in doctors paid to argue their side of things, and defendants’ bring in doctors paid to argue their side of things.

We can take a look at other countries. But first, we’ve got to look at our whole health care system. We as physicians have to look at a system where if we make a mistake, we’re making a mistake in a system that provides for little support for the patient to which it happened. That if you are negligent and cause a grave disability to another person, that person is sure shit out of luck. That until they’re 65, that grave disability is not just a disability, it’s often a major personal and financial liability . Because it’s now become a pre-existing condition . And at that point, without any guarantee that the problem or its complications–that you caused, mind you–will be paid for, of course people are going to sue sue sue! If a 30 year-old patient loses his health insurance tomorrow, he’s got a good 35 years of extra health problems to pay for. (And mind you, the patient knows his or her lawyers are going to take over half the settlement, anyway.)

So doctors need to take a look at our system–if only from a malpractice perspective–and see if it really makes sense for our patients. Americans sue 350% more than Canadians, and 50% more than Australians or Brits. Perhaps this health care non-system of ours is actually worse for us from a malpractice standpoint.

But patients need to pony up, too. People should be compensated for malpractice, but not bad outcomes. Americans must realize that death is part of life. That, for the most part, doctors are slowing death and prolonging life. If we weren’t here, their loved ones would die without our life- prolonging treatments that we’ve spent so long to learn. Surely this low bar should not be the standard we hold ourselves to as physicians, but there needs to be a way to quickly nip classic “adverse outcomes” lawsuits in the bud. There are certainly cases where it’s murky, but there are plenty of cases where a bad outcome or known risk is brought to court. I’m sorry, patients–I know you’ve come to expect perfection from your physicians. But we are unfortunately all too human to live up to that standard. Bad things happen. If 5% of people die from surgery X, you could be one of them. This is why sometimes doing less is more.

And this is why I support a no-fault medical malpractice system. ( This Slate article is a good start.) “No fault” is how malpractice works in a bunch of countries–and even how specific types of malpractice problems (bad birth outcomes) are handled in a few states . No-fault systems are great for problems like we face in medicine–that we try to avoid them as often as possible, but they admitedly happen. (They also take most of the money that currently goes to lawyers and gives it to patients that truly deserve it.) Quoting the Slate article:

In Sweden, when a patient suffers avoidable injury, whether through gross negligence, such as a botched surgery, or through a more understandable but avoidable mistake, such as a misdiagnosis or medication error, the patient—usually with help from the doctor’s office—fills out a form requesting compensation. That request, along with relevant doctor and hospital staff reports, gets reviewed by an adjuster who decides whether the injury might have been avoided had treatment differed. If the claim passes that hurdle, a panel of legal and medical experts considers it. If the panel decides the injury rose from avoidable error, the patient is compensated. The award varies according to the nature of injury, the degree and duration of the patient’s disability, the expenses incurred, and other factors; it may also include compensation for pain and suffering. The entire process usually takes less than six months. Patients who feel unfairly denied or undercompensated can appeal, but they cannot sue. The system is funded by premiums charged to regional organizations of medical facilities and physicians. These premiums are substantially lower and more stable than malpractice premiums in a tort system.

Such a system would generate more claims than does our present malpractice system—indeed, compensating more of the injured is part of the point. The system would save money, however, by eliminating punitive damages and legal costs. The legal and administrative costs of our present system (lawyers’ fees, court costs, paid experts) account for 60 percent of the estimated $24 billion the malpractice system consumes each year. A no-fault system would cut that to 20 percent or 30 percent, roughly doubling the money available for the injured.

Another option, which seems to be more bureaucratic (but have more precedent in the US) would be health courts , where malpractice cases would go to a specific branch of the Judicial system and cases would be heard by groups of medical experts, who could more objectively decide what is malpractice and what is bad outcome. (There are separate tax courts and patent courts for these specific types of complaints.)

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