The Nation's Health Care Debate: Medical Negligence - The AAJ Reports

Introduction by Attorney Malcolm P. McConnell

American Health Care, like American Justice, should be the envy of the world. We can attain this goal, but only if we base our decisions and our policies on facts. We must also be guided by traditional American values, to seek the best possible medical care for the greatest number of people, while zealously protecting the legal rights of all citizens, especially those who are innocent victims of wrongdoing. Some politicians want to limit the compensation of medical malpractice victims, wrongfully claiming that further injuring and victimizing innocents will improve health care for all of us and reduce costs. The attached Primer on Medical Negligence will give you the facts, gathered by independent and government agencies and reported by the American Association of Justice. The following excerpt is taken from:

Medical Negligence: A Primer for the Nation's Health Care DebateMedical Negligence: A Primer for the Nation's Health Care Debate

By American Association for Justice

Executive Summary:

The Health Care Debate

Reforming the country's health care system will be a major agenda item for the new Congress and administration. A large part of the debate will focus on the cost of health care and the driving factors behind it. In the past there has been much focus on restricting patients' rights to hold negligent medical providers accountable, but little focus on reducing and eliminating preventable medical errors. This is partly due to the exploration of the medical negligence "crisis" by interest groups with agendas to push. A large body of research prompted by the crisis now indicates that may of the common perceptions about medical negligence are more than myths. This report analyzes the most recent empirical work on medical negligence in an attempt to come to a better understanding of the true challenges facing the country.

Preventable Medical Errors - The Sixth Biggest Killer in America

Preventable medical errors kill and seriously injure hundreds of thousands of Americans every year. If the Centers for Disease Control were to include preventable medical errors as a category, it would be the sixth leading cause of death in America. Yet, despite this, much of the medical negligence policy debate has revolved around indirect factors, such as doctors' insurance premiums. Any discussion of medical negligence that does not involve preventable medical errors ignores the fundamental problem. Preventing medical errors will dramatically lower health care costs, reduce doctors' insurance premiums, and protect the health and well-being of patients.

An Epidemic of Negligence, Not Negligence Lawsuits

Despite the shocking number of medical errors, few injured patients ever file a medical negligence lawsuit, and fewer still file frivolous claims. Research shows almost all medical negligence claims are meritorious. Claims where there was no error are rarely paid and researchers have concluded the reverse - errors which are never compensated - is a far bigger problem. The reality is, as University of Pennsylvania law professor Tom Baker puts it, "We have an epidemic of medical malpractice, not of malpractice lawsuits."

Patients Want Accountability, Not Jackpots

Far from looking for a jackpot, research shows that patients file claims because they are seeking accountability. Too often patients injured by preventable medical errors are left in the dark about what happened to them: 70 percent of patients who experienced medical errors are not told by their doctors. Nearly one half of the nation's doctors admit not reporting incompetence or medical errors. On the other hand, hospitals and health systems that have embraced full disclosure of medical errors to patients have found that the number of medical negligence claims and their related costs declines.

Better Patient Safety Is the Key to Lower Health Care Costs

The rising cost of health care just intensifies the need to focus on preventable medical errors and their huge associated costs. The savings from preventable medical errors run into billions of dollars. The savings from restricting patients' access to justice, however, are negligible. Medical negligence costs amount to less than two percent of health care spending, and government economists estimate restricting all patients' restitution would only lower health care costs by 0.5 percent or less. Preventative reforms that focus more on the medical industry rather than the legal system are a key part of any effort to making health care more affordable and accessible.

Medical Negligence "Reform" Just Fills Insurance Company Coffers

Limiting patients' rights does nothing but fill the coffers of malpractice insurance companies. A large body of research has shown that the claims have remained stable for decades, while insurance companies have drastically raised physician premiums to build huge surpluses. State which have enacted caps on damages have seen hospitals and malpractice insurance companies make tens of millions but not cut the prices they charge patients and health insurers. Meanwhile the cost of health care continues to rise at near-record levels.

Doctors Are Not Fleeing

The most frequently echoed myth concerning medical negligence is the notion that doctors are fleeing states and retiring early, creating physician shortages. Anecdotal accounts of doctors fleeing states in response to increased insurance premiums have proved to be either unrepresentative isolated events, or flat out false. In fact, data from the American Medical Association (AMA) shows that physician numbers have been increasing across the board for many years. Not only are there record number of physicians in the U.S., the increase has also significantly outpaced population growth. There are now twice as many physicians per 100,000 population as there were with the AMA began tracking figures in the 1960s. The number of physicians per 100,000 population is significantly higher in states without caps. This fact is supported by a large body of research that has found physician supply is not connected to insurance premiums. Researchers at the National Bureau of Economic Research (NBER) concluded, "The arguments that state tort reforms will avert local physician shortages or lead to greater efficiencies in care are not supported by our findings."

The Civil Justice System Makes Us Safer

Every profession has its bad apples and physicians are no exception. Just six percent of doctors are responsible for nearly 60 percent of all medical negligence, and the civil justice system is the only effective means for holding them accountable. Other disciplinary mechanisms are woefully inadequate. State medical boards, for instance, are supposed to discipline doctors who consistently violate standards of care. Yet two-thirds of doctors who make 10 or more medical negligence payments are never disciplined at all. Hospitals are on the front lines of patient safety, yet nearly half of all U.S. hospitals have never reported a disciplinary action against one of their doctors since the National Practitioner Databank was created in 1990. Alternative compensation systems, such as health courts, propose eliminating or greatly sidelining disciplinary systems altogether. The civil justice system holds doctors, hospitals and insurance companies accountable. It is this accountability that drives the development of patient safety systems that help prevent negligence before it occurs. Hospitals, health systems and even entire medical fields have reformed dangerous practices because of the civil justice system. Without accountability the civil justice system enforces, patient safety will suffer and health care costs will go up for everyone."

Source: "Medical Negligence - A Primer for the Nation's Health Care Debate." American Association for Justice;

Introduction authored by Malcolm P. McConnell. Mic heads the Medical Malpractice attorney team at the law firm of Allen & Allen.

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