Wednesday, July 13, 2011

Medical Malpractice Myths?

July 13, 2001 - Yesterday, Maggie Mahar, a prize winning liberal journalist, wrote a blog in the widely-read The Health Care Blog. She asserts that conservatives have created seven myths surrounding tort reform. These myths, she maintains, create the illusion that malpractice is in crisis, when the actuality, the conservative view is a hoax. I beg to differ.

Seven Myths

These seven conservative-created myths, she says, are the following.

Conservative tort-reform-mongers have perpetrated seven myths that malpractice reform will:

1. limit awards, and eliminate thousands of frivolous suits;

2. create caps and rein in “runaway juries”;

3. lead to caps that will bring down the cost of malpractice insurance;

4. remove fear of malpractice suits that drive over-treatment;

5. make health care more affordable;

6. end the notion that “Every Patient is a Potential Plaintiff”

7. reduce the litigiousness of American patients.

The editors of The Health Care Blog have asked me to respond to Ms. Magar’s blog.

My Response

Here is my response.

Maggie Mahar has chosen to frame malpractice reform as a conservative-liberal issue.

Eleven times she evokes the word “conservative,” as the source of malpractice myths.

Here. in italics, I quote her words to show her reasoning precisely.

1. Conservatives call it the “malpractice crisis.” Public Citizen, a liberal non-profit consumer organization based in Washington D.C., calls it “The Great Medical Malpractice Hoax.”

2. “Put a lid on how much a jury can pay a patient for pain and suffering,” conservatives say, “and watch the suits begin to disappear.

3. In April, the American Enterprise Institute for Public Policy Research (AEI) released a working paper which pulls no punches as it rejects the conservative wisdom on capping awards.

4. AEI is a conservative think tank.

5. Yet, despite abundant evidence to the contrary, conservatives continue to talk about “opportunistic lawyers” and “phony” suits in a debate over medical malpractice that Hyman and Sage point out in their paper for the American Enterprise Institute, “can often seem theological.”

6. “On one side are those conservatives and doctors who have no doubt that frivolous lawsuits and Democratic politicians beholden to trial lawyers are the reasons American health care is so expensive.

7. “On one side are those conservatives and doctors who have no doubt that frivolous lawsuits and Democratic politicians beholden to trial lawyers are the reasons American health care is so expensive.

8. Conservatives make the argument that since plaintiff’s attorney usually work on contingency, (taking 30% or 35% of the award if they win), they will be less likely to take on cases if pay-outs don’t exceed $250,000.

9. There is no evidence that doctors practice more conservative medicine in states such as Texas.

10. Again, keep in mind that AEI is a conservative think tank and that Davd A. Hyman is an adjunct scholar at the libertarian Cato Institute.

11. Why then, do conservatives speak with such passion about the need for malpractice reform?

Overuse and Misuse of "Conservative"

Maggie Mahar's overuse and misuse of the word “conservative” shows her liberal bias and mars her otherwise balanced and well-written blog.

Malpractice reform is not about conservative-liberal differences. There is not a nickel’s worth of difference in malpractice rates among conservative and liberal doctors or among conservative and liberal sections of the country. It is about the built-in incentives for physicians and lawyers engendered by the American jurisprudence system, which produces the highest malpractice rates on the planet.

The answer may reside in adoption of the British system, where the loser in malpractice law suits pays. As noted in a December 15, 2010 Wall Street Journal editorial, “Loser Pays, Everybody Wins, “ perhaps we should adopt “ a British-style ‘loser pays’ rule, which would require plaintiffs to pick up the legal costs of their targets if they lose their suits. Almost all of America’s economic competitors follow a similar standard, but trial lawyers and their Democratic codependents have blocked states from making this revolutionary improvement to U.S. civil justice.”


maggiemahar said...


Thanks for mentioning my post, and the kind words. But I should point out that I did not
write it for The Health Care Blog (THCB)

I wrote it for my blog --HealthBeat (

The editors at THCB asked me if they could cross post it.

Secondly, on framing the malpractice issue:

Malpractice reform has always been a highly partisan issue. Conservative think tanks like the Heritage Foundation and the Republican party have claimed malrpactice reform (and “tort reform) as their issue for years.

Below, from Newbatch –( Your Internet Guide to an Understanding of Polilcy Issues.)
“Tort Reform” is a very partisan issue. At both the state and national levels, Republicans overwhelmingly support tort reform and Democrats oppose it. The trial lawyer associations which represent plaintiff lawyers are major contributors to the Democrats. Insurance and medical interests contribute heavily to Republicans. In fact, the tort reform debate can be considered as an aspect of the overall political dynamic involving distribution of the nation’s wealth. The most contentious issues involve medical malpractice and product liability. The result of settlements and verdicts of these cases is a transfer of wealth from groups which tend to be wealthy to victims and their lawyers. Virtually all the reform proposals ultimately attempt to limit the amount of funds which are distributed in this fashion.”

Also: “Tort reform remains a major policy objective of the Republican party. The 2008 Republican platform continues the pledge to reform what is described as corruption in the civil litigation system”

Then there is this from Forbes magazine: “conservatives have long argued that if we could only do away with – or place severe caps on- malpractice claims, a major step towards bringing down the high cost of care could be achieved.”

This is from Wise Republic (” a new common sense, Reagan conservative news & opinion blog.”)
“The Republicans in the House want to quickly satisfy their constituents who have been pressing for tort reform for 15-20 years–which to most of them means hard caps on non-economic damages. Yet the Senate Democratic Leadership is known to be quite sympathetic to the personal injury lobby, which is adamantly opposed to all tort reform, particularly caps on damages

Finally, this from the New York Times “”
“Conservatives are typically supportive of reforming tort litigation.

In other words, both conservatives and liberals view tort reform as a partisan issue. IF you look at a history of Congressional votes on the issue, you’ll find that they break down along party lines. Finally, plaintiff’s attorneys have a long history of contributing to liberals during compaigns while those who support tort reform (which includes malpractice insurers) have a long history of contributing to conservatives.

On "Loser pays all"
The problem with “loser pays” is that low-income and middle-income people wouldn’t be able to sue. They couldn ‘t risk losing and beinig bankrupted--losing their homes, etc.. (Unlike hospitals and doctors they don’t have insurance that will pay their court costs.)

In European countries that have adopted “loser pays” there are generous safety nets that protect a patient who sues & loses. Thanks to universal health care, all of his medical expenses are paid.He may well receive free legal services. And bankruptcy laws are different in Europe.

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Cosmetic said...

Great work done!
I never know these facts about medical malpractice

jaise@depuy hip recall said...

Its good to hear that those myths of medical practices had been debunked! Your post has been a great help!

mary@hip lawsuit said...

I been wandering to different sites to be able to see opinions about medical malpractice. your blog is a great help! said...

Thanks so much for this article, pretty useful material.

Defective hip replacement said...

Do you really think that a "looser pays" policy would help? There is no background to support the loser, if it goes bankrupt for instance. This will just create fear to face a big company and justice won't be demanded by those with limited financial resources.