Medical Malpractice Liability: A Case for Real Reform

Alfred P. Carlton Jr., President
American Bar Association

You wouldn't know it from watching the current debate on medical malpractice awards, but doctors and lawyers have much in common, including our reliance upon facts in performing our respective duties. Treating problems, physical and legal, requires first an assessment of facts. Simple problems often are easily treated with simple solutions. But doctors and lawyers both know that complex medical and legal problems are not given to simple solutions, but require several different and sometimes simultaneous treatments to cure them.

Against this backdrop, it should not be difficult for the medical and legal professions to examine the facts of the medical malpractice issue and work together to find a just solution-a solution that recognizes the need for legal and medical system reforms based on facts. Now that the U.S. Senate has, for the time being, set aside legislation imposing federal caps on state medical malpractice awards, perhaps such an approach can emerge.

So what are the facts? The fact is, a 50-year review of the investment cycle indicates that every time investment returns decline, insurance premiums increase. The fact is, there is no credible evidence available to demonstrate any variable other than investment returns that affects insurance premiums. The fact is, despite insurance industry claims, caps on medical malpractice awards have not stopped insurance rates from rising in states that have implemented them. My counterpart at the American Medical Association recently cited Virginia as an example of the looming "crisis," noting that physicians there are "starting to see the warning signs of a full-blown medical liability crisis" and pointing out that "over the past two years physician premiums have increased on average over 30 percent."

One problem, however: Virginia has caps. In fact, Virginia has a strict cap on all damages, not just the cap on pain and suffering awards then being considered by Congress. Further, and despite evidence that doctors in neighboring North Carolina (which does not have caps) and Virginia pay similar malpractice insurance premiums, he later urged North Carolina to adopt caps. And Virginia is not alone. From West Virginia to Louisiana to Missouri, caps on jury awards have failed to lower malpractice insurance premiums in states across the country.

Thus, if caps are not the solution, what is? Surely, there are steps that states can take to help insulate physicians against rising insurance premiums. Of course, states can do little to reverse declining investment returns. But they can improve some aspects of state medical malpractice laws through real, systemic reform.

And the legal system can do its part. For example, state courts should be encouraged to make greater use of their powers to set aside verdicts involving pain and suffering awards that are disproportionate to community expectations. State lawyer disciplinary agencies need to discipline lawyers who file frivolous lawsuits. States should create tort commissions to annually review tort awards and publish suggested guidelines to encourage uniform awards. And state legislatures should adopt a "clear and convincing" evidence standard for punitive damages in all personal injury cases, including medical malpractice cases.

But the medical system must also examine systemic reform. The problem will never go away if policymakers focus solely on lawyers and lawsuits. After all, to paraphrase one of my colleagues, the problem with medical malpractice is not the tort system; the problem with medical malpractice is medical malpractice.

A recent series of physician-written editorials has pointed to potential reforms: Doctors, hospitals and state medical boards need to learn more about the causes of medical errors and be proactive in reducing their occurrence. In order to evaluate and develop effective loss prevention programs, data needs to be collected and studies conducted on the cost and causes of professional liability claims. As one physician pointedly stated, "Amid the uproar about malpractice premium increases, there is a deadly silence from physicians groups on the crisis of inadequate doctor discipline. The problem is not the compensation paid to injured patients, but an epidemic of medical errors."

It is time to get beyond emotion and simplistic unworkable solutions to a real social and economic problem. To succeed, reform of the medical malpractice liability system will require a wholesale, multifaceted and multidisciplinary approach to reform of legal and medical systems. Such reform will require the medical and legal professions to work together, not apart. This lawyer, for one, is ready to begin that effort.