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I just finished reading an interesting medical malpractice article in the New York Times. It takes a relatively unbiased look at the issue of medical malpractice litigation and its relationship to the cost of healthcare. Proponents of adding so-called "tort reform" to any compromise on health insurance reform will say, "what do you expect? it’s the New York Times", but the article does a good job of discussing pros and cons.

The ultimate conclusion is that medical litigation represents a ‘miniscule’ amount of the cost of heathcare in this country, less than half of one percent of medical spending. The article also suggests that fear of litigation (so-called defensive medicine-ordering unnecessary tests, etc) increases the cost of medical care, but that cost seems to also be exaggerated.

To me, the major issue is one of patient/citizen rights. If a doctor must practice "defensive medicine" to provide a correct diagnosis and/or treatment, I say, let them practice defensive medicine and get it right. President Obama (who is on record as saying that he does not perceive medical malpractice to be a large factor in health care costs and does not believe in capping damage awards) has agreed to fund "demonstration projects" to explore ways to change the medical malpractice system. The president of the national group of trial lawyers, the American Association for Justice, reacted this way:

The goals outlined by the White House – such as reducing the number of injuries, fostering better communication, compensating patients quicker, and reducing doctors’ premiums – move the debate in the right direction.

However, 46 states have already enacted tort reform and health care costs continue to hurt the pocketbooks of American families. Because of these tort reforms, patients injured through no fault of their own are often unable to seek justice.

It is critical that these demonstration projects preserve Americans’ 7th Amendment right to a trial by jury. The details matter significantly, but any efforts to limit patients’ rights are not acceptable.

In other words, no change to the system should limit the legal right of a patient to a trial by jury when he/she has been wronged by a doctor or a hospital. According to the Obama administration, between 44,000 and 98,000 deaths from medical mistakes occur each year. Economists say that malpractice insurance premiums, jury awards/settlements, and defensive medicine account for a negligible percentage of the cost of healthcare.

Does a fear of lawsuits drive up the cost of healthcare? Maybe, a little. Is the statistic signficant? Absolutely not. Why is "tort reform" such a big issue, then? Because it is a red-herring, smokescreen, issue and lawyers are an easy target. Everybody hates lawyers, right? Well, according to the article, research by both the American Medical Association and the trial lawyers’ association confirms that defensive medicine accounts for only 3 percent of overall medical spending. I don’t know about you, but I would prefer a couple of unnecessary tests, a correct diagnosis and a cure to having my serious illness misdiagnosed or not diagnosed, resulting in no cure, serious injury or death.

The article also confirms my long standing position that most medical errors go unreported and the vast majority of malpractice leads to no legal action at all. In fact, says the article, only 2-3 per cent of medical negligence cases lead to a malpractice claim or lawsuit. You hear about the famous, large verdict cases, but you never hear about those that are not pursued.

How important is the issue of medical malpractice to the health care reform debate? Listen to Katherine Baicker, a Bush administration economist:

“Reforming the malpractice system wouldn’t be a bad thing, but it wouldn’t solve the crisis of mounting health costs.”

Lawsuit Financial supports sensible health care reform that does not infringe on the rights of victims of medical malpractice, thus punishing them a second time. Caps on damage limits do not prevent medical malpractice; they encourage it, by limiting the penalty that is meted out to the guilty party. As the article implies, our goal should be to reduce medical malpractice, not reduce medical malpractice lawsuits.


  1. Gravatar for Jeremy Engdahl-Johnson
    Jeremy Engdahl-Johnson

    Today's medical professional liability system is too adversarial and too expensive. There are alternatives. More at

  2. Gravatar for jim ohare

    Healthcare is the problem with healthcare. A 35% overhead and they do not deliver one bit of care- just brokers. med mal s role in the cost of HC is minimal. Why do people think one fixes the other? They both need independant fixes. France gets HC right at a 10% cost of GNP- and we cant get this right?? way sad.

    By the way Mark - would you ever pick a Doc as a juror?

    All defensive medicine causes is an expensive diagnosis- so what. Ask why it costs so much!!

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