Malpractice and Healthcare

I am very disappointed that there has been so little discussion of the importance of malpractice liability in the discussion of the cost of healthcare. It may be anecdotal, but my impression is that malpractice liability adds significant costs to medical care. It may be a relatively small percentage, but it’s a small percentage of a huge number. The CBO says malpractice costs are only 2% of overall healthcare costs. It’s hard to know where to go to get unbiased information because tort lawyers are such important donors to the Democratic Party.

My main anecdote is former senator and presidential candidate John Edwards, who became obscenely wealthy as a lawyer suing doctors for malpractice. There is no doubt that the doctors were at fault and that the victims should be compensated, but did the system have to pay for multiple mansions for John Edwards in addition to helping the victims? I think John Edwards is just one of many lawyers becoming rich off malpractice suits. Just watch the TV ads for lawyers trolling for clients who have been injured in various ways as a result of medical conditions.

The only people I’ve heard mention this issue, however, have been Susan Eisenhower on Bill Maher’s show and Mort Zuckerman on “Morning Joe.” I found a transcript of John McCain on Hannity’s Fox News site; so, maybe I just don’t watch enough conservative talk shows. McCain said a neurosurgeon’s liability insurance could cost $200,000 per year. I think ob-gyn insurance is about the same; they are people that John Edwards used to sue.

A 2004 Congressional Budget Office report on the malpractice tort suit issue was non-committal. Its conclusion was:

In short, the evidence available to date does not make a strong case that restricting malpractice liability would have a significant effect, either positive or negative, on economic efficiency. Thus, choices about specific proposals may hinge more on their implications for equity--in particular, on their effects on health care providers, patients injured through malpractice, and users of the health care system in general.

It also says that around the time of the 2004 report there were about annually about 5 successful malpractice claims for every 100 doctors, and the average judgment was $320,000, up from $95,000 in 1986. It further says that the evidence is not clear on defensive medicine, the practice of requiring many extra tests to confirm diagnoses. CBO believes that a greater driving factor for extra tests is the extra profit made by the doctors.

It seems to me that it would be better in a reformed healthcare system to go to a system like workmen’s compensation for malpractice claims, and to do more to drive out poor doctors. Even the CBO says it is a relatively small subset of poor doctors who really drive the costs of malpractice insurance through the roof. First, the government should do more to monitor doctors’ performance and eliminate under performing physicians. Secondly, the government could set price for the most common types of malpractice: X dollars for cutting off the wrong let; Y dollars for leaving a clamp in a patient after surgery, etc. Incidents not specifically listed could be arbitrated based on guidelines, rather than litigated by high priced lawyers for contingency fees.