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One Way to Lower Medical Malpractice Costs

It sounds a bit silly, but there's a whole lot of evidence to suggest that saying sorry actually works.

By Ezra Klein  |  July 20, 2009; 4:23 PM ET
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It doesn't sound that crazy to me. I happen to know someone who is beginning a lawsuit that I am pretty sure could have been avoided with a "sorry" and explanation for how everything happened.

Posted by: Castorp1 | July 20, 2009 4:27 PM | Report abuse

It would be nice if medical providers could give discounts when they screw up but their insurance contracts usually forbid the practice. The only real option is to sue them. Regular businesses would get sued a lot more if they couldn't giveaway discounts and free services for screwing up.

Posted by: fallsmeadjc | July 20, 2009 4:31 PM | Report abuse

This is a heavily distorted topic. The whole "cap awards debate" is mostly a strawman that Dems have effectively used to deflect the issue.

Torts generally aim to accomplish two things:

1. Compensate victims of wrongful actions
2. Provide a mechanism for encouraging and enforcing better practices.

For health care, torts are an inconsistent and inefficient practice for #1, and a miserable failure at #2.

The high-level solution:

For #1, we need a non-adversarial, worker's compensation-like solution that allows for standardized compensation based on the caused injury and resulting loss of income. Courts just simply don't have to be involved here. (Funny that Democrats shy away from comparative health system analysis when it comes to tort reform, huh?)

For #2, the solution is federalizing physician licensure, disciplinary review boards as well as beefing up JCAHO and like organizations. This will be significantly more effective at discouraging bad practices as well as disciplining poor performers in the system. Torts haven't accomplished anything on this measure.

Posted by: wisewon | July 20, 2009 4:40 PM | Report abuse

1. The total of all malpractice insurance premiums amounts to 0.56% of health care costs.
2. The CBO has examined the idea of defensive medicine. They found no difference in practice between states with limits on tort settlements and those with no limits.
3. There is no correlation between the price of malpractice premiums and the amount given out in malpractice settlements.
4. The price of premiums does (anti) correlate with interests rates.
5. If you take all the money given out in malpractice settlements over $250,000 in NJ ( a state without caps) in a year and give it to physicians, each doctor would get $15.

These come from the book The Malpractice Myth by Peter Baker (U of Chicago Press)

Thus the doctors are wrong on almost every count. Malpractice premiums are not a significant factor in health costs. Physicians order unnecessary tests and treatments even when there are draconian limits on lawsuits as in Texas. Caps would save us nothing. The price they pay for insurance has nothing to do with the large settlements given out, and the total amount of money involved in these settlements is trivial. What they believe is a fantasy.

Posted by: lensch | July 20, 2009 4:46 PM | Report abuse

But why should it sound silly? Of course people are less likely to sue those who acknowledge wrongdoing and apologize/ask for forgiveness. If one feels wronged by a doctor who refuses to admit that he/she made a mistake, there's a natural temptation to sue "to prove him/her wrong." If one feels that one's concerns have been heard and addressed in good faith, then surely one is much less tempted to escalate.

Posted by: Nitish | July 20, 2009 4:55 PM | Report abuse

That was the theme of chick flic Nights in Rodantha, with Richard Gere as an aging surgeon hunk who failed to say he was sorry and was faced with a lawsuit. In the movie, Diane Lane gets him to say he's sorry and understand the pain he caused. My bet is that this is the intellectual source of your latest new idea. The rest come from West Wing.

Posted by: truck1 | July 20, 2009 5:08 PM | Report abuse

If it were only so; I am afraid that you have fallen for the trap Mencken warned about: For every complex problem there is a solution that is neat, simple and wrong. Suits are not filed strictly for malpractice but equally often for unexpected or undesirable results. We will never known precisely just how many unhappy people go to lawyers for vengeance claiming that they are seeking justice.

Posted by: desertsage | July 20, 2009 5:27 PM | Report abuse

"2. The CBO has examined the idea of defensive medicine. They found no difference in practice between states with limits on tort settlements and those with no limits."

This garbage statistic is about as useful at exonerating tort, as a cause of overuse, as the .56% statistic in item 1. All that is necessary is for liability to drive the standard of care upward (as all obedient liberals maintain that it does) and you have implied that it also increases usage.

Liberals throw up a smoke screen when they equate the "non-necessity" of a test or procedure with the low probability that any given patient actually needs it. But the truth is that a doctor is 100% liable for the outcome of the .1% patient who would have actually benefited from the procedure, and so he orders the procedure for all patients who might eventually sue him for overlooking a diagnosis. Even where the law limits the amount he's liable to pay.

When doctors have true "safe harbor" for overlooking improbable diagnoses, maybe then they will have the latitude to prescribe less treatment. In the meantime they still prescribe at least what's necessary to protect themselves from lawsuits. Even "small" lawsuits like the ones you cite as magical evidence of, well, nothing.

To say that liability isn't a major factor in defining thorough protocols is disingenuous, and pure liberal hogwash.

Posted by: whoisjohngaltcom | July 20, 2009 5:53 PM | Report abuse

"This garbage statistic is about as useful at exonerating tort, as a cause of overuse, as the .56% statistic in item 1."

And you're going to offer up something in response other than a gallon of spittle, Galtroid?

Posted by: pseudonymousinnc | July 20, 2009 6:32 PM | Report abuse

LOL. Got anything other than ad-homs, pseudonymousinnc?

I didn't think so.

Posted by: whoisjohngaltcom | July 20, 2009 7:34 PM | Report abuse

LOL. For someone who has nothing to say, Galtard, you spend a lot of time saying it.

Posted by: pseudonymousinnc | July 20, 2009 8:44 PM | Report abuse

Well, you're free to explain why Obama himself acknowledges malpractice lawsuits when addressing the AMA, why the AMA cheered about it, and why the incoming AMA president ties overuse to lawsuits.

Everybody seems to understand the problem except for you libs. And the trial lawyers for whom you shill.

Posted by: whoisjohngaltcom | July 20, 2009 10:59 PM | Report abuse

When doctors start doing a better job of policing themselves (yeah, right) or states start putting medical results online, then the may get a bending of the curve in malpractice. It is a one-sided street now and the only remedy is filing suit. Bad doctors are the enemy of good doctors, but they stick together. The Oath of Omerta is included in the Hippocratic Oath.

Posted by: PoliticalPragmatist | July 21, 2009 12:37 PM | Report abuse

The real evidence of what drives medical malpractice will come out once the US equivalent of the UK NICE panel comes out and starts mandating certain treatment algorithms that have been proven via randomized controlled trials to be the "best" treatment outcomes.

If medical malpractice cases go down afterwards, then it will be evidence that true malpractice was leading to these lawsuits. If, as I suspect, med mal lawsuits remain unchanged or increase, it means that lawsuits have absolutely nothing to do with quality of healthcare delivered.

Posted by: platon201 | July 21, 2009 11:52 PM | Report abuse

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