Truth, Justice, and the Malpractice Way

Trial lawyers rushed to the court of public opinion this week to head off any attempts to add limits on medical malpractice awards to health care reform legislation.

One major goal of the bills pending in Congress is to curb the growth of health care spending, but none of the bills so far has addressed medical liability lawsuits. That’s a glaring omission, say physicians, business groups, and Republicans. Because of high jury awards in malpractice cases, doctors—especially specialists like neurosurgeons and obstetricians—face soaring malpractice insurance premiums and sometimes order tests that aren’t really necessary, a practice known as defensive medicine.

As Democrats search for a way to get health care reform passed, they may be tempted to add medical liability reform to the legislation in hopes of winning some Republican votes. One prominent former Democratic lawmaker, Bill Bradley, has gone public with the view that a health reform–malpractice reform combo is the best chance for getting something done.

The American Association for Justice will have none of that. No, we’re not talking about the Justice League of America—that’s a team of superheroes. Instead, this is a group formerly known as the Association of Trial Lawyers of America. “Justice” polls better than “trial lawyers” apparently.

On Tuesday, the association released an analysis that contends medical malpractice lawsuits account for less than 2 percent of health care spending. Restricting the rights of patients to sue their doctors for as much as a jury thinks they’re due would have little or no effect on health care costs, they contend.

On Wednesday, a few hours before President Obama will speak to Congress about health care reform, the association will hold a teleconference for reporters. The message: “Patients’ rights aren’t bargaining chips,” said association president Anthony Tarricone, a partner in the Boston office of Kreindler & Kreindler.

“Considering 98,000 people die every year from medical errors, health care reform should first do no harm,” he said. “The legal rights of injured patients simply can’t be bargained away.”

The American Medical Association has its own studies to refute the trial lawyers’ arguments. According to the AMA, the threat of being sued prompts $151 billion in spending on defensive medicine a year. More than 60 percent of liability claims against physicians are dropped, withdrawn, or dismissed without payment, the AMA states, but even these cases cost physicians an average of $18,000 in legal costs.

When cases do go to trial, physicians are found not to be negligent 90 percent of the time, according to the AMA.

We’ll leave it to a jury of our readers to decide who’s right on this issue, but first one more piece of evidence: The number of television ads soliciting plaintiffs for medical malpractice lawsuits jumped from 10,150 adds in 2004 to more than 150,000 ads in 2008—an increase of 1,400 percent in four years.

That’s according to a study conducted by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.

Institute president Lisa Rickard said the explosion in malpractice TV ads shows that these cases have become increasingly important to trial lawyers.

“Lawsuits are ultimately a business driven by the plaintiffs’ bar, and when you see the marketing of medical malpractice lawsuits exploding like this, it tells you that these lawsuits are a growing sector within the larger lawsuit industry,” Rickard said.

Old ambulance chasers never die—they just sue for more money.