Medical care providers are people and people make mistakes – that’s it, plain and simple, and the facts can’t be disputed. An editorial which appeared this week in the Salt Lake Tribune offers the following statistics:
The other side of the coin is that doctors and hospitals regularly kill people through their negligence. In 1999, the Institute of Medicine of the National Academies reported, "Based on the findings of one major study, medical errors kill some 44,000 people in U.S. hospitals each year. Another study puts the number much higher, at 98,000. Even using the lower estimate, more people die from medical mistakes each year than from highway accidents, breast cancer, or AIDS."
Tort reformers, however, love to sweep such statistics under the rug and focus on things like so-called defensive medicine." MedicineNet.com defines this as:
Defensive medicine: Medical practices designed to avert the future possibility of malpractice suits. In defensive medicine, responses are undertaken primarily to avoid liability rather than to benefit the patient. Doctors may order tests, procedures, or visits, or avoid high-risk patients or procedures primarily (but not necessarily solely) to reduce their exposure to malpractice liability. Defensive medicine is one of the least desirable effects of the rise in medical litigation. Defensive medicine increases the cost of health care and may expose patients to unnecessary risks.
A debate rages about whether defensive medicine is a statistically significant problem but if it is, the doctors who practice it should be hiring lawyers – not medical malpractice defense lawyers, criminal defense lawyers. If they are ordering tests, procedures or care visits to reduce their exposure to malpractice liability, they are violating the Hippocratic Oath and committing insurance fraud because they are being reimbursed for unnecessary care.
In any event, tort reformers have successfully sold their "we need caps on damages to reduce malpractice insurance premiums and to reduce defensive medicine" bill-of-goods to a number of legislatures including the one here in Utah. We have a draconian Governmental Immunity Act, with a one-year notice of claim requirement and a total damages cap that shields every governmental medical provider and facility, from the smallest rural county hospitals to the giant University of Utah Health Care system. For those medical providers not so protected, we have a short two year statute of limitations, a mandatory pre-litigation review process that can add up to a year to the litigation process, and caps on general damages.
There is no evidence that these "reforms" have had the intended effect – malpractice insurance premiums are dictated by how well insurance companies are doing in the stock market, not how much they pay out in claims. And doctors still claim that they worry about being sued and practice medicine in response. So much for the intended effects, but what about what may not have been intended?
Again, people are routinely injured and killed by the negligence of medical providers. These people, who could be you, your family members or your friends, are entitled to recover for the real economic, physical and emotional losses associated with such deaths and injuries. Not surprisingly, people who have been victimized by medical negligence focus first on grieving the loss of a loved one or, for those not killed, getting better if they can. Figuring out how to deal with their losses by examining potential remedies often comes down the road.
In many states, such as Utah, that natural time lapse can pose real problems that may undermine those remedies. Medical malpractice cases are complex and time intensive. And they are expensive – very expensive. Attorneys who help the families of the dead and the injured only get paid if there is a recovery. And they can invest tens of thousands of dollars of their own money on costs associated with getting a case to resolution. These economic realities dictate that only meritorious cases be pursued, but it takes time to figure out which cases have merit and which do not. Medical records must be gathered which can take months. Once gathered, records must be reviewed by a qualified expert to determine if there was negligence which caused an injury for which a legal remedy is available.
With such short time lines for pursuing claims, however, lawyers representing the injured are often forced to file notices of claims and other documents to initiate claims before a full detailed analysis of all of the potential players and elements of various claims can be completed. If they don’t, the claims of their clients may be barred. The result is that some cases may be dismissed voluntarily down the road, or individual providers may be let out of a case, because after there is time for a full vetting it turns out there is not a good case against them.
Medical providers complain all the time about a "shotgun" approach to medical malpractice cases – pursue everyone in sight for everything under the sun and sort it out later. But that is not what is happening. Attorneys representing victims are making the best decisions they can and taking the steps necessary to protect the rights of their clients before they are lost. If they are forced into initiating a claim because of deadlines and they later determine that they don’t have a strong case, they do the right thing and end the process. Such unintended consequences of tort reform should not be replicated with the imposition of additional limitations on access to justice.
