Diagnosing Malpractice Reform
Today on Capitol Hill, Congress is hearing testimony about the crisis in malpractice insurance that has brought the health care system to its knees in many parts of the country. On one side, doctors say their premiums for malpractice insurance are prohibitively high. The insurance companies say that it’s because of escalating and unpredictable jury awards in malpractice cases, although many knowledgeable people suggest that the insurance companies are merely saying this as a pretext, and that the real reason rates are going up is to make up for the underperformance of the financial assets of insurance companies. In any case, they want caps on the damages that can be awarded for malpractice claims, saying this will reduce costs.
On the other side are the patients, and, of course, their lawyers. They argue that the often-grievous nature of malpractice incidents justifies the large awards, especially when the doctors involved were plainly at fault. Certainly there should be some way to discourage the filing of frivolous cases, because those really do hurt everyone to benefit unscrupulous lawyers. But in my opinion, cases with merit should be able to proceed without caps or limits. Here’s why.
The underlying dilemma here is the nature of the damage done to the victims. When you undergo a medical procedure, you put yourself completely at the mercy of your caregivers. Anyone who has ever been in a hospital knows how total is the surrender of control, comfort and, often, dignity when one is a patient. We accept this as the price of treatment, but it goes against our most basic natural instincts to leave ourselves physically defenseless as someone tampers with our fundamental biological being. Even low-risk procedures can (and should) stir up some level of discomfort, despite the promise of relief of whatever condition is being treated.
Given the primal fear at work here, the least assurance that the medical profession can offer is that the attending caregivers will be careful and conscientious to the limits of their ability. Some errors are caused by limited knowledge, others by unavoidable technical problems. These are understood as the routine risks, and they are grave enough. But when an already treacherous situation is aggravated by willful incompetence, carelessness, fraud or deception, that is an unpardonable breach of trust.
To routinize low standards of care by assigning them fixed, manageable costs is, in my view, fundamentally unacceptable and (you won’t hear me use this word very often) immoral. But that’s what would happen if we legally cap the liability exposure in malpractice cases. Hospital administrators and insurance company actuaries would calculate the known liability costs against the costs of prevention to determine an “acceptable level of risk” - e.g., tolerance – for malpractice. Anyone seeking health care would then have to factor this in along with all the other uncertainties and indignities associated with treatment.
The bottom line is this. Doctors don’t want to be accountable for the awesome responsibility they have taken on themselves. Insurance companies don’t want to be financially responsible for the doctors whose business they have solicited and won. So instead, they want to pass the burden of risk to the patient - not just financial risk, but life and health risks as well. While it’s certainly neater and cleaner from the point of view of the system, it involves literally putting a standard dollar price on human life and suffering. That’s a messy enough business for a jury to do on a case-by-case basis, but it’s something that shouldn’t be made any more easy or convenient.
1:01:32 PM 
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