Last evening President Obama made a final plea for his health insurance plan before a joint session of Congress.
One of his proposals is an exploration into so-called “medical malpractice reform.” Some critics of his plan have sought much broader “reform”. Both sides claim that “reform” will reduce medical costs.
Over a series of posts I shall seek to “set the record straight” on the myths of medical malpractice. As compared to most of the talking heads on television and print, I have some experience with medical malpractice and the civil justice system.
Myth I–Medical Malpractice Reform Means Improving the System of Everyone
No one is against reform. Reform means to change something for the better.
However, medical malpractice reform means limiting the rights of people injured by medical negligence. The beneficiaries of reforms are on defendant side of the lawsuit, i.e., doctors and hospitals. There is nothing offered to the injured plaintiff. Indeed, recoveries would be fewer and smaller.
Here are some of the “reform” proposals:
- Limiting damages for pain and suffering to $250,000;
- Creating special medical malpractice courts or panels decide cases; these panels would be made-up of doctors rather than regular people who serve on our juries;
- Having the loser pays the winning side’s costs; and
- Total elimination of medical malpractice cases.
I have no doubt that these proposals would save money. Indeed, in eliminating all medical malpractice cases there would be a great savings. Doctors and hospitals would not have to pay for malpractice insurance. After all, who wants to pay for insurance?
However, “reform” would carry a heavy price. First, we would be creating a special set of rules giving a separate class of the population more rights than others. Our society maintains that a negligent person should be responsible for his wrongdoing. This would create an exemption for doctors and hospitals. Second, in eliminating or restricting malpractice recoveries, a doctor or hospital doing harm would have little financial incentive (or fear) to make sure that proper care is given. Again, this goes against a basic tenet of our civil justice system that a wrongdoer should pay for his negligent conduct so as to make the injured party “whole” again.
We should not call proposed changes in medical malpractice “reform”. It is a rolling-back of the rights of the people.
Mark E. Seitelman, 9/10/09, www.seitelman.com.