Review of Data on Medical Malpractice in Texas

That there is no blood money (money from the doctor's assets for huge awards), is confirmed. Damage caps have a beneficial if small effect.

Tort reform has always been a mildly effective remedy to the damage of medical malpractice business.

Problems not addressed:

1) The majority of medmal cases are weak or frivolous. Over 75% fail at every stage of litigation. The profit stems from the small number that generate an insurance award. The filing of a weak case may be ethical. However, it is lawyer malpractice.

2) All awards and all costs come from the public. Insurance covers these, but all insurance premiums come from doctor fees to the public. So these costs increase fees or decrease access. An example of a decrease in access is the growing rarity of family doctors and of maternity wards.

3) Medical malpractice prevents improvements in quality and reduction of medical errors. They force a cover up on health care providers. All advice to the contrary, such as the apology movement, serves the discovery aims of the medmal plaintiff bar. Because most cases are weak, the barest minimum of cooperation is justified intellectually and morally. Furthermore, total e-discovery should be demanded against the adversaries of clinical care, the plaintiff, the plaintiff lawyer, and the judge after any adverse ruling.

4) The doctrines of torts, especially the idea of a chain of causation, does not apply to modern remedies or deterrence. Mishaps are better understood as clusters of factors coinciding for a horrible outcome.

5) Medical malpractive may cost around 2% of the health care budget. However, its intimidation effect causes a 10% of wasted services in defensive medicine. Doctors are also afraid to fail to go all out for moribund, terminal patients out of fear of medmal claims or even criminal prosecutions by the lawyer district attorney. They torment dying patients with futile care. Futile care may account for 25% of the health care budget being wasted. So, ending medmal may reduce costs, not by 2% but by 37%, with no decrease in the quality of care.

6) A friend moved to another state. Years later, he tried to cancel his medical license in the former state. They refused, and delayed for months, after he insisted on deactivating it. That means that statistics that doctors have not moved away are false if based on licensing board numbers. They do not want to embarrass their political bosses, and just ignore cancellations.

What are better remedies?

1) End the privity obstacle to lawyer malpractice claims by adverse third parties. When a lawyer files a weak claim, the doctor has been damaged by lawyer carelessness and malpractice, and should be made whole. The litigation privilege is self-dealt by lawyers and judges, is unjust and violates the constitutions of the US and of many states.

2) If a patient suffers an injury by doctor error, they should receive Medicaid. Why should the tax payer be liable for the error of a doctor? The taxpayer is liable under today's medmal practice anyway, in the form of higher fees or decreased access to care. The Medicaid benefit for those damaged by medical error would be cheap, would provide care for the injury, and would cut out the massive rent seeking, worthless services of the lawyer, the court, and the insurance businesses. Because most of medmal awards are consumed by the costs of weak cases, fees, insurance profits, the cost of Medicaid benefits would be low. So, it could be easier, faster to get without conflict or time wasting for all parties.

3) In exchange for Medicaid benefits to all involved, regulators could demand total quality improvement. Every serious medical error deserves an airline crash style analysis of the multiple factors that clustered to cause it. Entire wings of hospitals could be closed by regulators until the causes were addressed. As a patient, that would be the greatest benefit. The results of the investigation should be posted to the web so that similar operations could benefit before they would hurt a patient.