nos-trum. pronunciation: \nos'-trum\. noun. Etymology: Latin, neuter of noster our, ours.
1. a medicine of secret composition recommended by its preparer but usually without scientific proof of its effectiveness.
2. a usually questionable remedy or scheme.
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Monday, March 29, 2010

How Often Does A Malpractice Award Indicate Actual Medical Negligence?

Not many cases that result in malpractice awards are substantiated by outside experts

You will frequently hear the argument (mostly from trial lawyers and the political Left) that tort reform drastically cuts the financial compensation to victims of medical negligence.

As I've said before, the awards don't really go to the victims;  studies vary but I've seen everything from 15% to 45% of the award actually ending up in the victims hands.  The lawyers make more than the people whose situation we are trying to compensate.

That being said, most of us know that frivolous lawsuits are common.  In my day, it was an every day occurrence that an insurance company would settle a claim, right or wrong, if it was relatively small (say $100,000.00) because it cost more to fight it and win in court.  Doctors hated that they caved in like that.  but it was easy money for the lawyers.

But, all this is irrelevant to tort reform.  Malpractice cases award two types of claim:  an economic award and a punitive award.  The economic award is based on a formula:  if the person would have earned X during the remainder of an average life span, then the award is calculated from that and other economic impacts.  Tort reform doesn't have any affect on this award.

The other award, the "punitive" award, is given to punish doctors or companies for doing something that the plaintiffs lawyer has successfully portrayed as shockingly bad.  It's unlimited, in theory.  In practice, it's where the big awards come from...and where the lawyers get their big fees.  One way to do tort reform is to cap the punitve amount: in Texas, it's $750,000.00

So, you could have a $3M economic award and a $10M punitive award without reform, for a total of $13M.  With tort reform the limit would be $3.75M.  Not bad.

Back to the original question.  A study was done some years ago (Annals of Internal Medicine):  a panel of internal medicine specialists (internists) were give a stack of case records, under conditions of anonymity.  They were given  no knowledge of the case, the patient, or the hospitals or doctors involved; all this information had been removed.  They were asked to determine whether, in their expert  medical negligence occurred:  yes or no.

Half the cases had gone to trial for malpractice and a jury had awarded damages.  The other half were control cases matched for disease, patient characteristics etc.

Guess what percentage of the malpractice award cases were validated by the objective experts:  10%.

That doesn't give me much confidence that our judicial system works very well.  Don't get me wrong; we need a system that is fair to victims, but doesn't drive up the cost of medical care  (MY MAIN POINT).

I vote for arbitration panels, with trials as a backup if an agreement can't be reached.  I also support punitve award caps--they are mostly egregious and unrelated to the damages.


1 comment:

Anonymous said...

Doctors should review the practices of other Doctors, and lower caps would also reduce the over all costs. I agree with your final statement. Thanks for the simple facts, it helps me understand the issues.

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