‘Myths’ about medical malpractice challenged by insurance law expert

The subject of medical malpractice tort reform agitates the Bush Administration, insurance companies, trial lawyers, and UConn law professor Tom Baker, all for different reasons.

The Administration says laws should be changed to make it harder to sue and collect large sums in medical malpractice cases. Those ideas also play well with insurers.

Trial lawyers, on the other hand, oppose legislation that would limit large damage awards for clients and, by extension, substantial legal fees.

In a new book published in October, Baker, the Connecticut Mutual Professor of Law and director of the law school’s Insurance Law Center, lays out the competing positions of various participants in the medical malpractice tort reform debate while unveiling his own primary conclusion, which some readers may find surprising:

The problem is not too much litigation, but too much medical malpractice.

Using data from a number of studies, including one that found nearly 100,000 Americans a year are injured or killed by malpractice, Baker shows that only a small percentage of people actually sue.

“Depending on the study, there are between seven and 25 serious medical malpractice injuries for every medical malpractice lawsuit,” he says. “By comparison, almost everyone who gets injured by a negligent driver files a lawsuit or claim.”

The book also examines malpractice insurance premiums paid by doctors; jury verdicts in malpractice cases; and the role of “defensive” medicine in driving up health care costs.

Premiums fluctuate because of market forces, he says, rather than an explosion of litigation, as some observers maintain.

Individual specialists such as obstetricians pay far more than doctors whose potential for injuring patients is considerably less. But Baker says annual premiums, which average about $12,000 per doctor, equate to less than one percent of U.S. health care expenditures.

He contends these premiums do not contribute in any meaningful way to the cost of health care. “If policymakers think obstetricians have to pay too much, the answer is to change medical malpractice insurance, not tort law,” he says.

Baker’s investigation shows that jury verdicts do not favor plaintiffs over defendants, and that cases with little or no merit rarely reach a jury, despite the Bush Administration’s position that “every claim filed by a personal injury lawyer brings the chance of a huge payoff or a profitable settlement out of court.”

As for the charge that doctors practice defensive medicine, ordering unnecessary and costly tests and procedures, Baker says, “tort law, with its potential for punishing malpractice, encourages doctors and hospitals to err on the side of caution.”

But he says studies suggest there is less excess testing than people might think, and that in any case, doctors often differ on what protocol is appropriate in any given case.

“How do you know what’s an unnecessary test if you don’t know what a necessary one is?” he says.