This article is more than 5 years old. Information may no longer be current.
Differing perspectives on the goals of malpractice litigation
Click Here to Manage Email Alerts
Hidden from public view has been an ongoing scholarly dispute about the purpose of malpractice litigation or more broadly, the purpose of tort litigation, which deals with personal injury lawsuits of all natures. There have evolved three schools of thought about the goals of the malpractice system: the economist, the sociologist and the philosopher. The economist view starts from an understanding of the basic economic facts of malpractice litigation. Approximately $10 billion to $20 billion are spent every year on malpractice insurance premiums. Of this, less than 25% is spent to compensate patients who have been injured as a result of medical management. To economists, the purpose of the malpractice system should be to assure the premiums spent on purchasing malpractice insurance be applied toward compensating patients who have been injured from medical negligence.
Economists note more than 75% of malpractice premiums are spent on what are commonly referred to as “transaction costs.” These include costs for adjusting claims, defense lawyer fees, expert witness fees and insurance company profits. Economists seek to design a system that eliminates or significantly diminish transaction costs using two proposals.
The first is the development of a malpractice no-fault system, similar to workers compensation for industrial accidents. By eliminating the concept of fault, most of the $10 billion to $20 billion can be transferred directly to patients who have injuries from medical treatment, regardless of whether those injuries were the result of medical negligence or the inherent risk of the procedure.
B. Sonny Bal
Another proposal is what has become known as enterprise liability. The basic premise is the defendant who is most capable of spreading the cost of malpractice verdicts and settlements to all patients, is the party who should be liable to a patient who has suffered an injury due to alleged negligent medical conduct. For example, a multi-hospital system is more capable of spreading the losses for valid malpractice claims through increased fees over a large patient population, a capacity that an individual physician lacks.
Sociologist view
Sociologists view the purpose of malpractice litigation as producing social utility, i.e., improving either the quality of care, reducing the cost of care or both. The plaintiff attorneys often argue that by having more frequent verdicts for patients and larger verdicts for patients, a signal is sent to physicians to improve the level and quality of their care. In a typical plaintiff’s final argument, the attorney is likely to argue, “The failure to timely recognize the malignant breast cancer that resulted in the death of my client violates community standards. By returning a verdict for my client’s estate, you as the jury are sending a signal to all doctors within this community that this activity will be sanctioned by the judicial system. This sanction takes the form of a significant verdict against the defendant. Thus, you as the jury must provide maximum compensation to the estate so that community doctors understand that negligent conduct will not be tolerated.”
Defense lawyers often argue that to improve our health system and to provide more access to patient care, there needs to be fewer verdicts for the plaintiff, and when there is a verdict for the patient, the amount should be proportional to the damages. A defense lawyer would argue, “You must return a verdict for the defense, or if you find the defendant negligent, you must return a verdict that only adequately compensates the plaintiff for their loss. To do otherwise sends a signal to the medical community that they need to engage in defensive medicine. If they fail to perform single laboratory test or if they fail to perform an MRI or CT scan, they may be subject to unfair malpractice verdicts. This would result in what has been commonly referred to as defensive medicine and leads to many patients being subjected to unnecessary tests and procedures and utilizes resources that could otherwise be spent to help patients who are in need of medical care.”
Philosopher view
Philosophers believe the sole purpose of malpractice litigation is justice. They note in a democracy there are many transaction costs, and these costs are acceptable in a just and democratic society. They also note there are many vehicles to improve the quality of care in the community, such as medical licensing boards, hospital peer-review and other forms of medical disciplinary action.
The philosophers believe malpractice litigation should solely focus on the parties to that litigation. The role of the judge and the jury is to reach a “just and fair verdict.” Justice within the context of malpractice has been referred to as the “just distribution of losses.” When a patient sustains a medically related injury, the issue in a malpractice case is whether the cost of that injury should be redistributed to the alleged negligent health care provider. The search for the just distribution of these losses often involves complex issues of what is fair. Regardless of the complexity, the philosophers see the goal of the malpractice system as fairness and justice, not social utility or diminishing the costs of malpractice litigation.
Lawrence H. Brenner
Conclusions
Medical malpractice is a thought-provoking subject, one that often brings out heated and passionate arguments from the stakeholders. Unlike some other areas of tort law, medical malpractice is felt at a personal level by attorneys, injured patients and their families, and physicians. All parties can probably agree patients should be compensated for egregious injury that is the result of a deviation from accepted norms of medical care or injury that results from mistakes.
Properly calibrating the level of compensation such that justice, fairness, and equity are achieved, while physician autonomy and professional self-worth are preserved is a difficult balancing act. Perhaps someday we can develop a malpractice system that achieves all of the objectives of the different schools of thought — a system where more patients can be compensated, the quality of medicine is improved, and the results of litigation are fair and just.
- For more information:
- B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center and are the exclusive providers of loss prevention, risk management and quality improvement services for the Orthopedic Physician’s Insurance Company. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner report no relevant financial disclosures.