- The Washington Times - Saturday, June 23, 2001

Doctors, who face the daily threat of being taken to court for doing their jobs, think lawsuits are bad for medicine. A few weeks ago, hundreds of Pennsylvania physicians closed offices and canceled surgeries to protest soaring premiums for malpractice insurance. An editorial last year in the Journal of the American Medical Association said the malpractice liability system, far from spurring doctors to provide good care, actually serves as "a barrier to quality improvement."

So how does the AMA propose to solve the problems allegedly created by managed-care organizations? You would never guess: Let patients sue them.

That´s the approach of both of the two "patients´ bill of rights" measures being debated this week by the U.S. Senate. One, favored by the Bush administration, would let patients file lawsuits in federal court, but it would put a $500,000 lid on damages for pain and suffering, while barring any awards for punitive damages. The other, supported by most Democrats and the AMA, would go further, letting alleged victims sue in state courts as well, with unlimited compensation for pain and suffering and up to $5 million for punitive damages. Broader liability, says the AMA, is needed to "hold health plans accountable for their decisions."

There´s a certain logic to these proposals. As advocates note, you can sue your physician if she gives you the wrong treatment, or insufficient treatment, to your detriment. So why shouldn´t you be able to sue your HMO for denying the care you need?

But another question ought to be asked: Given how poorly malpractice litigation has served patients and doctors alike, why should it be expanded? The idea behind making physicians liable for their decisions is to discourage errors, promote better care, and compensate patients for any suffering that results from doctor errors. Alas, as the medical profession will be the first to attest, it doesn´t work that way. And there is no reason to think it would do any better when applied to HMOs and insurance companies.

The malpractice system is certainly expensive, and getting more so. In 1999, the median award in medical cases was $800,000. Jury awards rose 7 percent, even though patients won fewer cases than in the previous year.

The outlays might be a bargain if this approach were effective in punishing bad doctors and making their victims whole. But doctors win two out of every three verdicts which means that for every guilty physician who is brought to justice, two innocent ones are put through the wringer. Their experience brings to mind Voltaire´s comment: "I was never ruined but twice: once when I lost a lawsuit, and once when I won one."

A Harvard study of 30,000 hospital patients published in 1997 in The New England Journal of Medicine found that the medical malpractice system operates with amazing randomness. More than 80 percent of those who filed suits had gotten high-quality care. Nearly one-fifth of the suits were filed by people who had suffered no injury whatsoever yet their claims were settled for an average of $29,000.

In a sensible system, a patient would be more likely to win a suit if he suffered some harm or if his doctor did something wrong. So it may have come as a surprise to the authors that neither factor had anything to do with a litigant´s chance of success. A patient who came through unscathed thanks to excellent treatment was just as likely to collect damages as one whose doctor operated on the wrong knee. "If this system were a medical procedure, the lawyers would be suing to stop it," says Washington attorney Peter Huber, author of the 1988 book, "Liability."

If lawsuits do such a poor job of identifying and rectifying errors by doctors, there is no reason to think they will perform better with respect to HMOs and insurance companies. Just the opposite, in fact. As University of Chicago law professor Richard Epstein points out, hauling an HMO into court is bound to improve the plaintiff´s chance of success.

Under the proposed change, says Mr. Epstein, "it is no longer necessary to sue a beloved physician who resides in the community. Instead, to use the favored expression, the recalibrated lawsuit will 'send a message´ to some distant financial organization whose only connection to the community is a monetary one." That explains why trial lawyers are salivating at the opportunities created by the crusade for "patients´ rights."

In the end, turning medical decisions over to lawyers and juries promises to raise health-care costs without improving quality, while often punishing the innocent and compensating the undeserving. That may come as news to you. But doctors should have been able to figure it out on their own.

Steve Chapman is a nationally syndicated columnist.

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