In the debate over tort reform, “five myths of medical malpractice” with “wide currency in medical circles” are frequently repeated in op-ed essays, blog postings and public statements by physicians, including those designated as spokespersons for organized medicine, according to a report in Chest Journal, published by the American College of Chest Physicians
The “myths” identified in the article are: Malpractice crises are caused by sudden rises in payouts and claim frequency; the tort system delivers “jackpot justice”; physicians are one malpractice verdict away from bankruptcy; physicians move to states that adopt damages caps; and tort reform will lower healthcare spending dramatically.
In the article, authors Dr. David Hyman, an attorney and physician from the colleges of law and medicine at the University of Illinois, Urbana-Champaign, and Charles Silver, an attorney with University of Texas in Austin School of Law's Center on Lawyers, Civil Justice and the Media, acknowledge the malpractice system is slow, expensive and “perceived by everyone involved” as unpleasant and “often unjust and unfair.”
In debunking the myths, they report that payouts per physician have been dropping since 2003 and are now 46% below the 1992 level.
“Many patients who experience bad outcomes cannot tell whether they are victims of negligent treatment or bad luck,” leading some who received appropriate care to file claims. But they also say some patients who were harmed by negligent care cannot find a lawyer to take their case, so “the liability system is simultaneously beset by overclaiming and underclaiming.”
Hyman and Silver write that only about 2% of cases go to trial, providers win 75% of those cases and only physicians “who grossly underinsure” should worry about loss of personal assets after losing a case.
They argue that there is mixed evidence showing that caps on damages contribute to states attracting and keeping physicians in rural areas and high-risk specialties. But they note that they “found no evidence that Texas' tort reforms bent the cost curve downward.”
The most effective reforms, say Hyman and Silver, are patient-safety efforts that lessen the frequency and severity of medical errors.
“Ideally, the liability system would encourage providers to adopt patient-protecting innovations,” the authors conclude. “Its effect in that regard is limited, however, partly because tort reforms insulate providers from many of the costs of medical errors.”
According to the Texas Medical Association, tort reform in that state has helped improve patient accessibility to care.
“We have always said reform is about patients' ability to find a doctor when they need to,” said Texas Medical Association spokesman Brent Annear. “And we believe that reform has helped make that happen.”
While the report focuses a lot on tort reform in Texas, it barely mentioned the damages caps instituted in California. In an e-mailed statement, Dr. Jeremy Lazarus, president of the American Medical Association, said that the record in California disproves the authors' conclusion that caps “do little” to improve the system.
"The AMA strongly supports California's medical liability law as a model for reform for one simple reason: it works,” Lazarus said. “California-style reforms provide a common-sense solution that allows patients their day in court and safeguards accessible medical care. Nearly 40-years of solid evidence shows that this public policy has protected patients' access to care by stabilizing the medical liability system.”
Lazarus added that the AMA has called for testing innovative reforms and seeks “a reasonable balance” between the needs of patients who have been harmed and the needs of those needing affordable and accessible care.
“Every dollar spent on the broken medical liability system is a dollar that cannot be used to improve patient care,” he said. “The abuses and excesses of the civil justice system must be addressed as the nation works to improve access to high-quality healthcare.”