The Real Medical Malpractice Crisis

Establishment politicians and special interest lobbyists love to use the spectre of a “medical malpractice crisis” to justify taking away constitutional rights to jury trials in health care negligence cases.  But the real crisis is not some imaginary explosion in “frivolous lawsuits” or “lottery verdicts”–the real crisis is medical malpractice itself.

The AARP recently published an article entitled “Hospitals May Be the Worst Place to Stay When You’re Sick,” and it makes a great point about the sheer number of preventable injuries–including wrongful deaths–that occur due to negligent medical care:

The number of patients who die each year from preventable hospital errors is equal to four full jumbo jets crashing each week. If airline tragedies of that magnitude were occurring with such frequency, no one would tolerate the loss.

But rather than address the harms caused by medical malpractice, powerful corporate interests and insurance companies have convinced politicians and even some members of the public that more limits need to be placed on the civil justice system.

The most recent of these assaults is the passage of H.R. 5 by the U.S. House of Representatives.  It is the first piece of legislation sponsored by the House that lacks a statement of Constitutional Justification–probably because they couldn’t find one.  Indeed, although the bill passed a Republican-controlled House, it has been widely criticized by conservative scholars such as the Heritage Foundation’s Hans von Spakovsky who notes that it tramples states’ rights.

In a bit of impeccable timing, Cornell University Law Professor Theodore Eisenberg recently published a paper analyzing the empirical effects of “tort reform” legislation over the past several decades.  The paper, which can be downloaded here, concludes that tort reform legislation has indeed lowered costs for health care providers.  Those savings, however, have not been passed on to consumers.  Additionally, limits on recovery have discouraged hospitals from enhancing patient care.  Caps on damages have removed the incentive to improve the quality of care.

What this means for the average American is that thanks to tort reform, you have fewer rights, and you pay more for lower quality health care.
Meanwhile, insurance company shareholders are laughing all the way to the bank.