MML Rants And Raves No. 008: Is Tort Reform Needed Because Doctors Pay Too Much For Malpractice Insurance?

One of the mantras of the tort deformers (we call them “tort deformers” because they want to eliminate personal responsibility for one’s own bad actions that hurt innocent others) is that people should not be fully compensated for their injuries due to the fault of their health care providers because their health care providers are paying too much for their malpractice insurance.

The are three major reasons for the existence of medical malpractice insurance: to protect wrongdoers from personal financial ruin due to their failure to provide the minimum required level of medical care to their patients; to provide a stable source of compensation to those who are injured through no fault of their own by medical care that was substandard as determined by the minimum standards established by the medical profession; and, to spread the costs associated with bad medical care to the entire medical provider community so that negligent health care providers can continue to practice their chosen profession.

Everybody Makes Mistakes But Most Mistakes Don’t Result In Loss Of Livelihood Or Loss Of Life

Everyone makes mistakes: when we are first learning to feed ourselves as infants, much of our food ends up on our clothing or on the floor. When we enter school, we forget to bring a permission slip home for our parents to sign. At home, we leave our dirty clothes on the floor or fail to put our toys back where they belong. When we are learning to parallel park a car, we don’t park close enough to the curb. During the school year, we oversleep and miss early morning classes. During the first years of marriage, we buy a stupid anniversary gift or make a reservation at the wrong restaurant. Minor mistakes are made throughout our lives…  Most of our mistakes result in only a temporary scolding from our parents or being “in the doghouse” with our spouses or friends for a short period of time.

But some medical mistakes result in long-term or permanent pain, suffering, and disability (such as the failure to timely diagnose a stroke that should have been promptly treated and would have resolved without any permanent disability such as complete loss of use of one side of the body). The surgeon who amputates the wrong limb (it is amazing how many times a surgeon has operated on the wrong (the opposite) limb) causes a catastrophic, life-long disability from which the patient will never fully recover. The gynecologist who mistakenly fails to diagnose and treat a serious but common gynecological condition that results in a young newlywed’s inability to have children devastates not only the patient but also her spouse and the marital relationship, which may result in divorce or in a lacking marriage. These are only a few actual examples of medical carelessness that result in terrible and life-long injuries.

If the negligent health care provider is not fully responsible to his/her innocent patient, then who should assume financial responsibility for the resulting costs? The innocent victim of malpractice? Should the state or federal government (that is, “we, the people”) have to pay the on-going medical costs and the monthly disability payments (Social Security) to the now-disabled patient? Or should the wrongdoer who caused the damages be responsible for his/her own mistakes, like we have been taught throughout our lives?

The big difference between those who commit medical malpractice and those who commit other negligent acts (such as the negligent driver who rear-ends a stopped vehicle in front of him in a parking lot) is that the potential extent of the resulting injuries and the amount of the monetary damages may be very extensive. But the exposure to potentially greater financial liability is no excuse to limit that liability — to do otherwise is to shift responsibility from the negligent actor to the innocent victim or to the public in general (through government benefits), which is contrary to our beliefs and principles.

Medical Malpractice Insurance Is Like Car Insurance

We are all familiar with motor vehicle liability insurance (car insurance). We pay a premium (payment) for car insurance just like all other drivers. The amount we pay for insurance is based not only on our risk to others but also on the risks associated with all of the other drivers who are insured with the same insurance company. While we may complain about how much we pay for car insurance, most people would agree that it is necessary and smart to have car insurance if we drive so that we are not financially ruined in case we are in an accident that we caused. And if we cause an accident, we seldom blame the innocent other driver for his or her injuries that were caused by our own negligent driving. We also understand that our insurance premiums will increase if we are the at-fault driver in an accident (we understand it but we are not happy about it) and that our premiums often increase from year to year depending upon how much our insurance companies had to pay to innocent victims of the negligence of the covered drivers in the prior year (the secretive but high profits of liability insurance companies will be addressed in a future MML Rants and Raves blog).

Medical malpractice insurance companies are similar to car insurance companies — they spread the risks of financial losses among the peope they insure. Some health care providers are a greater risk for causing losses and therefore pay a higher premium (just like drivers). Some health care providers are in a specialty that is less risky (such as dentists compared to obstetricians who deliver babies) or in a specialty where the likely injuries caused by medical negligence would be less costly (same example). Doctors complain about their medical malpractice insurance premiums just like drivers complain about their car insurance premiums but doctors and other health care providers have been able to convince many state legislatures that they should be subject to special treatment so that the results of their carelessness is vastly limited and the costs of injuries is shifted to their innocent victims (imagine a negligent driver who injures an innocent other driver complaining that the innocent other driver should pay some if not most of his own medical expenses and losses as a result of the accident). Why have health care providers been so successful in convincing our state representatives that they should not be fully responsible to others for the injuries they negligently caused? Perhaps it is because doctors and other health care providers spend more money on influencing elected officials than do drivers and they are more organized and often threaten to leave their practices if they don’t get their way (can you imagine the response if  a driver told his state representative that if the law was not changed to vastly limit his responsibility to other vehicles on the road that he will stop driving?).   

Just like car insurance companies that spread the risk among less risky and more risky drivers but also charge higher premiums for higher risk drivers, medical malpractice insurance companies spread the risk among more risky specialities such as obstetrics and less risky specialities such as family practice. but also charge higher premiums for obstetricians. In short, the medical malpractice insurance system for health care providers continues to work the way it was designed and the way it is supposed to work — if it isn’t broken, there is no need to fix it! 

And Don’t Forget…

Sometimes lost among all of the tort reform and medical malpractice insurance rates debates is the fact that bad medical outcome does not equate to medical malpractice —  in most states it is only when the health care provider failed to provide that level of care that a reasonably competent health care provider under the same or similar circumstances in the same or similar community would have provided that the negligent health care provider is liable for his/her negligent care (or lack of care). Isn’t that fulfilling the personal responsibility that we have all been taught since we were infants?

If the medical care you received fell short of the level of medical care that the law requires that you receive and if the substandard medical care caused injuries to you or a loved one, use our website which can connect you with medical malpractice lawyers in your area who may be able to help you with your medical malpractice claim. Our toll free number is 800-295-3959.

This entry was posted on Sunday, June 5th, 2011 at 12:06 pm. Both comments and pings are currently closed.


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