Rarely does a day pass without hearing that some state is getting creative
on how to deal with medical malpractice reform — what to do about
medical malpractice lawsuits, how to prevent huge amounts of money from
being paid, how to make things easier on doctors, and how to lower insurance
costs and payouts.
In virtually any proposition, medical malpractice victims are sidelined.
Though they endure debilitating injuries, disability, and pain, pundits
wants them to suffer more and get less in compensation. If people, including
lawmakers, think the solution lies in reducing compensation to victims,
there is something seriously wrong with the system.
Lately, there have been some rather creative propositions to deal with
medical malpractice damages, including one from Arizona that suggests
attorneys be certified as medical malpractice attorneys, before the could
file a lawsuit. Additionally, the suggestion also calls for only specially
trained judges to handle these cases. Good idea? Bad idea? It would certainly
remove attorneys inexperienced in the field and who would only take on
a case and refer it to a lawyer who could handle it.
Oregon has new legislation in place that lets doctors and patients, those
with genuinely serious injuries, to discuss their situation and a possible
resolution, prior to anyone filing a lawsuit. While it may not accurately
be called mediation, it may be more along the lines of negotiation. Does
it have potential? Only time will tell.
Recent articles and studies indicate the system in place to handle medical
malpractice cases is seriously messed up; much like the U.S. immigration
system, and we all know how much progress has not been made in that regard.
Most disturbing though is that a Health Affairs study revealed that doctors
spend a whole chunk of time in court, as opposed to caring for their patients.
That’s a frightening thought. If they are in court defending their
medical judgement, or lack of it, they are in court for a valid reason.
Oddly, they argue they are forced into practicing defensive medicine, which
is a chic catch-all concept designed to deflect attention from the “real”
issue —- medical negligence. Doing more tests, ordering more lab
work or x-rays will not necessarily mean the doctor won’t still
make a mistake and misdiagnose, fail to diagnose or diagnose too late.
Nor does it mean they will not end up prescribing the wrong drug for the
wrong person, the right drug in the wrong dose or the wrong dose for the
right person. Complexity is obviously an issue here. Either the medical
professional is on the ball, or they are not. If they make a mistake,
they need to be held accountable for it.
One of the nation’s largest medical malpractice insurers, The Doctor’s
Company, suggests the average doctor spends at least 51 months in litigation
over the span of their career, resulting in no payout and costing them
time lost in caring for patients. The issue here may then be that jurors
are reluctant to find that doctors and hospitals are negligent even when
malpractice has occurred.
The health industry and the insurance industry have spent hundreds of millions
of dollars providing misinformation to the public in order to villainize
people who seek compensation for injuries caused by malpractice. The spokesperson
for the company also suggests the bulk of medical malpractice lawsuits
are frivolous. Hundreds of medical negligence attorneys would vigorously disagree.
Florida and Georgia will attempt to completely overhaul the medical malpractice
litigation system, by educating people about defensive medicine, said
to cost the medical system close to $650 billion a year. Again, the real
issue is making mistakes, whether there are lots of tests or not.
Who will fix the human factor in the practice of medicine? Who will clean
up after medical negligence when a victim’s life has been irreparably
destroyed due to a medical error? It won’t be the insurance companies.
It won’t be the lobbyists who want to cap damages. It won’t
be the lawmakers who think victims need less money to care for themselves
because someone ruined their lives. It will be the medical malpractice
attorneys holding a medical professional responsible for their mistakes.