Myths of Medical Malpractice Bring Caps Back to Missouri

Medical malpractice caps are regularly in the news. Last week the Missouri legislature passed a bill to reverse the Missouri Supreme Court 2012 ruling in which the court had ruled caps to be a violation of the constitutional right to a jury trial.

Their supreme court had it right. The entire premise of the bill relies on myth. The myth is that the medical community and medical care is under siege from frivolous medical malpractice lawsuits.

The reality is that it is not the claims but the medical negligence underlying them that drives up costs to the system, taxpayers, and most of all innocent patients and families. This last part is rarely mentioned in the constant refrain of the need to put caps on damages or the many other proposed reforms proposed to rein in the mythical crisis.

In short, the very thing that is most in need of correction, the epidemic of preventable medical errors, has grown worse over the years with medical malpractice reform and will continue to do so as more and more protections disincentivize medical providers to do better.

Caps of Medical Malpractice Damages

A cap on damages means limits on what a jury can provide to an injured patient (and far too frequently the surviving loved ones) for the injuries and losses suffered. It means that the legislature has seen fit to limit the scope and role of the jury (and judge) in these cases.

In other words, no matter what the jury decides, the caps limit fair compensation. This is remarkable with the fact that legislatures around the country have decided to limit the compensation for injuries related to every medical malpractice case in advance without ever hearing one shred of evidence related to the injuries and losses in any particular case. Only the jury hears this and the jury is the only one that can fairly judge any individual case.

Myths Behind Caps Mislead and Harm Public

• “Missouri law currently allows for no caps on such lawsuits, leaving physicians vulnerable to limitless judgments.”
• “This weeds out some of the frivolous costs and massive punitive awards that have caused the cost of health care to spike over the years…”
• “This is another good step towards reigning in the cost of health care.”

Myth of Crippling Costs Associated with Frivolous Medical Malpractice Lawsuits

Health Affairs Journal provides evidence and support for the conclusion that medical malpractice claims, including defensive medicine, accounts for only 2.4% of total healthcare spending.

There is significant evidence and support countering the common myths surrounding medical malpractice, the costs to the system, defensive medicine and others.

The simple truth is that there are perhaps problems with the medical malpractice claims system but the many myths surrounding it are not among them.

Myth of Defensive Medicine is Highly Dangerous to Innocent Patients

Would defensive medicine really allow for up to 440,000 deaths a year by preventable medical error. The former U.S. Congressional Office of Technology Assessment (OTA) defined defensive medicine as follows:

“When doctors order tests, procedures, or visits, or avoid certain high-risk patients or procedures, primarily (but not solely) because of concern about malpractice liability.”

The irony and danger of the myth of defensive medicine is evident from the numbers related to death by preventable medical error. It is estimated that as many as 440,000 Americans die each year from preventable medical error. Would not defense medicine avoid “preventable” medical error? If medical providers were truly over-testing, would hundreds of thousands of Americans die each year from preventable medical error?

Perhaps, they are not over-testing but instead running the wrong tests. Alternatively, it is equally likely that they are negligently running, interpreting and acting upon the tests that they do conduct.

Trends in Deaths by Preventable Medical Error

• 1999 Report from the Institute of Medicine: 98,000 Deaths by preventable medical error.
• 2010 Report from the Office of Inspector General for Health and Human Services: 180,000 deaths each year (15,000/month) from Medicare related medical care alone.
• 2013 Report from Journal of Patient Safety: 210,000 to 440,000 deaths from preventable medical error.

That would make medical errors the third-leading cause of death in America, behind heart disease, which is the first, and cancer, which is second. If the estimate of 440,000 deaths is correct, then death by preventable medical error during hospital care represents “roughly one-sixth of all deaths that occur in the United States each year.”

The direct cost of preventable medical errors to the medical system was more than $17 billion in 2008. However, when taking indirect costs into account, the Journal of Healthcare Finance estimates that the costs of preventable medical error approaches $1 trillion each year.

Are Limits on Compensation to Innocent Patients and Families Really the Answer?

Money talks, rationality, honesty and fairness walk. Like it or not, money is the motivating factor in almost all business decisions. Medical care is a vast industry with $2.9 trillion in spending in 2013 alone. Make no mistake; medical care is a business motivated by money as is every other business.

Likewise, like it or not, one of the greatest motivators for change and improvement is and has always been the possible financial responsibility to the public for harm caused by the business. Take away the right to fair compensation and you remove one of the greatest incentives for improvement for any industry. Medical care is no exception.

It is safe to say those large judgments, including punitive damages (which are extremely rare) and non-economic damages (subject to caps) play a significant role in creating change.

Caps and Other Limits on Patient Rights to Fair and Just Compensation No Incentive for Improved Patient Care

This will lead to more and more protections for medical providers from their own negligence. Likewise, there will be a continuing reduction in responsibility for harm.

As the increasing assault on the rights of innocent patients and families continues, expect the death toll to continue to rise along with the costs that associated medical negligence carries with it.

Caps and other protections for medical providers against their own negligence makes little sense. Yet the myths will continue. The medical community, its insurance carriers, their politicians and lobbyist will continue to push them.

Saddest of all, the public, patients and families will jump on board, including most of the several hundred thousand patients that may be expected to die next year.