By MICHAEL J. SAKS
PHOENIX -- The best way to prevent medical malpractice litigation is to reduce the incidence of medical errors and injuries.
Studies conducted over the last 30 years have repeatedly found them to be the leading cause of accidental death and injury in the United States, exceeding all other causes combined. The president's solution to this public health catastrophe is to protect insurers and injurers at the expense of seriously injured patients.
Proponents of the legislation argue that litigation adds to health-care costs because doctors and hospitals pass those costs along to consumers. But that is exactly why health-care providers cannot complain too loudly about malpractice premiums: it is patients, not providers, who ultimately are expected to pay the bill.
Second, that litigation "surcharge" buys patients deterrence against error, harm and the resulting costs, thereby keeping the total real cost of health care lower. As the deterrence factors go down, injuries, and the total real cost of health care rise.
A relatively few doctors cause most of the carnage. About 5 percent of doctors are the focus of half the lawsuits. Removing those doctors would reduce quite a lot of malpractice, malpractice suits and the costs of both.
The malpractice system needs repairs, but not because it is too hard on defendants. Only 3 percent of negligently injured patients bring suits. The rest quietly absorb the costs, bodily and financial.
This is a serious flaw in the litigation system. Most people who would be entitled to compensation never obtain it. Deterrence stays at a lower than optimal level. And even a small rise in the rate of claims will feel like an avalanche to insurers -- for example, if the 3 percent of victims who sue suddenly doubles to 6 percent.
How well does the existing system screen out "frivolous" claims? One telling finding is that a doctor is 29 times more likely to be sued by a patient who has been injured by malpractice than by one who has been injured non-negligently.
Benefit of the doubt
When the relatively few cases that get filed reach trial, juries give doctors considerable benefit of the doubt. Of cases where insurers believed their clients committed malpractice, half of the victims lost at trial.
And those few who win usually are under-compensated. Though the law says that victims of negligent injuries should be fully compensated for their losses, research finds that only 10 to 20 cents are paid on each dollar of economic loss.
The centerpiece of President Bush's legislation is to cap so-called non-economic damages at $250,000. These damages are awarded to compensate people for the intangible but enduring consequences of injuries -- pain, disability, blindness, paralysis or other suffering -- beyond the amount awarded for the cost of medical care and lost income.
In reality, general damages make up for part of the above-noted shortfall in economic compensation. Worse, those who have suffered the most severely are the ones cut off, while those with less serious injuries (below the $250,000 cap) would be fully compensated.
Would you trade both of your eyes, or arms, or your ability to walk or feed yourself, for $250,000? What kind of morality approves a plan to shortchange only the most seriously injured?
Proponents argue that provisions such as caps will make doctors more willing to disclose their mistakes and thereby reduce future errors. How caps can do that is a mystery. Moreover, existing federal law already protects the confidentiality of such communications.
Many improvements might be made in the law relating to medical injuries: compensating more victims more fairly and more efficiently, making malpractice premiums less volatile, removing bad doctors, abolishing fault, strengthening the patient safety movement, or other steps to reduce the frequency and severity of medical errors. But states cannot experiment with such reforms if there is a federal takeover of this area of law.
President Bush's bill makes no effort to solve any of the real problems, while insuring that the worst doctors will continue to burden their colleagues as well as their patients.
X Michael J. Saks is professor of law and psychology fellow of the Center for the Study of Law Science and Technology, Arizona State University. Distributed by Knight Ridder/Tribune Information Services