Cries of Crisis: Rethinking the Health Care Debate

3. The Medical Malpractice Crisis

51 D E B AT E S O V E R M A L P R A C T I C E R E F O R M in the United States evoke a strong sense of déjà vu. The same themes used to frame the debate over the malpractice crisis in the 1970s—including familiar policy narratives, horror stories, and recurring patterns of news coverage and political rhetoric— reappeared in each subsequent debate about malpractice reform. The rhetorical similarities are so striking, in fact, that legislative testimony, editorials , and news coverage from the 1970s or mid-1980s could easily be mistaken for rhetoric from the present day, and vice versa. For decades, physicians defined the malpractice crisis as an insurance crisis, typified by out-of-control growth in claims, the size of jury awards, and malpractice insurance premiums . Lawyers, in contrast, argued that physicians were the real culprits behind the malpractice crisis, as the profession was either unwilling or incapable of preventing “bad doctors” from committing serious, often deadly, medical errors. Both diagnoses, however, are ultimately incomplete.1 The debate over malpractice reform over the past four decades illustrates Wittgenstein’s discussion of the “unintended misuse” of language. Rather than engaging in a serious dialogue about how to reduce the rate of malpractice and preventable medical errors, the principal characters in each Doctors want to reduce the rights of victims. It’s like saying the way to solve muggings is to change the penal law so that mugging is not a crime. That’s not the solution. The root of the problem is sloppy medical care. —New York State Trial Lawyers Association, quoted in Tom Goldstein, “Doctors Called Opposed to Rights,” New York Times, June 3, 1975 For the past several years, we have seen numerous symptoms that tell us our nation is facing a crisis because of a broken medical liability system. The symptoms are unmistakable: patients having to leave their state to receive urgent surgical care; pregnant women who cannot find an obstetrician to monitor their pregnancy and deliver their babies; community health centers reducing their services or closing their doors because of liability insurance concerns and the increasing fear of litigation; efforts to improve patient safety and quality being stifled because of lawsuit fears. —American Medical Association, “Testimony Before the Committee on Energy and Commerce, Subcommittee on Health, U.S. House of Representatives,” February 10, 2005 c h a p t e r t h r e e the Medical Malpractice crisis 52 c r i e s o f c r i s i s narrative—doctors and lawyers—continue to talk past each other, recycling familiar arguments each time the issue returns to the public agenda. Despite decades of debate and the passage of scores of malpractice reforms, no agreement exists on either the nature of the crisis or how to treat it. Neither diagnosis, however, addresses the underlying problem of unintended medical errors that claim tens of thousands of lives in America each year. As a result, talk of a malpractice crisis is ultimately dysfunctional, for it fails to focus public attention on efforts to improve the safety and reliability of medical care. For physicians, the rhetoric of crisis became a powerful symbol to mobilize support for tort reforms among legislators and the public. Medical malpractice cases are tort claims, in which an individual alleges that he or she has been injured as a result of the negligence of another party. Although tort reforms offered short-term relief for rising malpractice premiums, they did little to address the underlying problem of medical error. Little evidence exists that tort reforms reduce the cost of “defensive medicine,” in which doctors order additional tests and treatments to shield themselves from charges of medical practice. Physicians framed each malpractice crisis from the 1970s to the present day as an insurance crisis, but failed to acknowledge the widespread prevalence of preventable medical error. Furthermore, while the number of malpractice claims, and the average size of jury awards, increased over time, they have done so at a steady, incremental pace. Spikes in the number of claims, in other words, do not seem to explain rising premiums for physicians. Dire predictions that rising malpractice premiums would lead to physician shortages also failed to materialize. The policy narratives offered by opponents of tort reform suffer from similar shortcomings. The legal profession focused public attention on the victims of egregious errors. Trial lawyers, for their part, generalized from “worst cases” to...