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.”