Reform and Medical Malpractice

¶ … Health Care

The objective of this study is to discuss medical malpractice and to support the opinion that this is in need of a reform.

Many people die each year from medical errors and many others are seriously injured. It is reported that the Institute of Medicine's (IOM) "seminal study of preventable medical errors estimated as many as 98,000 people die every year at a cost of $29 billion." (American Association for Justice, 2011, p. 3) It is additionally reported that were the Centers for Disease Control (CDC) to "include preventable medical errors as a category, these conclusions would make it the sixth leading cause of death in America." (American Association for Justice, 2011, p. 1) In addition, it is reported that the Congressional Budget Office (CBO) states findings that "there were 181,000 severe injuries attributable to medical negligence in 2003 The Institute for Healthcare Improvement estimates there are 15 million incidents of medical harm each year. HealthGrades, the nation's leading healthcare rating organization, found that Medicare patients who experienced a patient-safety incident had a one-in-five chance of dying as a result." (American Association for Justice, 2011, p. 3) It is reported that one in three individuals in the United States relates that they or a member of their family has experienced an error in medical treatment and one in five are reported to relate that "a medical error has caused either themselves or a family member serious health problems or death." (American Association for Justice, 2011, p. 4)

I. Medical Malpractice Reality

It is reported that individuals are led to believe that there are only a small number of actual medial errors and "hundreds of thousands of medical negligence lawsuits every year. In reality, the reverse is true. There are very few medical negligence lawsuits and hundreds of thousands of patients dying from preventable medical errors." (American Association for Justice, 2011, p. 4) University of Pennsylvania law professor Tom Baker is stated to have related "We have an epidemic of medical malpractice, not of malpractice lawsuits." (Association for Justice, 2011, p. 5)

Hospitals are reported to be that fueling the false impression and this is stated to "does a disservice to patients by systematically covering up mistakes and problems. For instance, federal law requires hospitals to report incidences in which doctors have been disciplined to the National Practitioner Databank (NPDB), founded in 1990. However, in the two decades since its creation, nearly half of all U.S. hospitals have failed to report even a single incidence of doctor discipline. Hospitals perpetuate a harmful air of secrecy by using loopholes to avoid reporting problems, such as restricting the privileges of physicians guilty of negligence and misconduct for 29 days to avoid reporting requirements associated with restrictions of 30 days or more." (Association for Justice, 2011, p. 5)

The Center for Medicare & Medicaid Services (CMS) is reported to have emphasized the potential savings that can result from a reduction in medical errors. Medicare is reported to have very recently "rewarded hospital errors with larger reimbursements, by paying them an extra amount to treat various preventable complications that developed as a result of hospital negligence." (Association for Justice, 2011, p. 5) According to reports the researchers at Harvard University in 2006 related that findings of a study conducted illustrated that "most negligence claims involve medical error and serious injury" and the report is stated to have concluded that "portraits of a malpractice system that is stricken with frivolous litigation are overblown." (Association for Justice, 2011, p.5) The researchers report that "few claims were without merit and those that were generally did not receive any money." (Association for Justice, 2011, p. 5) In fact, the largest majority of negligence claims had merit and 97% of the claims made involved medical injury while 80% of them involved physical injury that had the outcome of a major disability or even death. (Association for Justice, 2011, paraphrased)

II. Tort Reform

It is reported that tort law "is a function of state law" and that each U.S. state has differing rules for filing a tort claim against a medical provider. One of the primary legislatively medical malpractice tort reforms is that of placing a cap on damages that were noneconomic in nature. Those who advocate for tort reform state that "noneconomic damages are arbitrary and unpredictable and, as such, complicate the settlement process." (Ottenwess and Ottenwess, 2011, p. 2) It is additionally held that "losses for emotional distress and pain and suffering are intangible and exceedingly difficult to assign a dollar value." (Ottenwess and Ottenwess, 2011, p.3) Presently more than 30 U.S. states are reported to have placed caps on noneconomic damages when it comes to medical malpractice lawsuits. Stated as the typical state cap on damages is that in the range of $250,000 to $500,000. In addition, the tort law concept of joint and several liability have both "undergone significant tort reforms in the context of medical malpractice claims." (Ottenwess and Ottenwess, 2011, p. 3)

It is reported that joint and several liability had in the traditional sense enabled the plaintiff who has received some type of injury by two or more individuals at fault to make recovery of the total amount of damages suffered from any one of the defendants involved However, those argue for tort reform posit that "joint and several liability is an inequitable concept because one defendant, generally, arbitrary and unpredictable and, as such, complicate the settlement process." (Ottenwess and Ottenwess, 2011, p. 4)

III. False Claims Concerning Costs

Reported as one of the most frequent stated criticism of the tort system in medical malpractice is "that the defense of medical malpractice actions needlessly increases the cost of healthcare in the United States." (Ottenwess and Ottenwess, 2011, p.4) However, the research shows that "cost surrounding medical malpractice litigation is a small fraction of overall healthcare spending in the United States." (Ottenwess and Ottenwess, 2011, p.5) It is reported that the total cost of providing defense for medical malpractice claims and providing victims compensation for medical malpractice in 2007 was approximately $7.1 billion which equals 0.3% of the annual healthcare costs for that year." (Ottenwess and Ottenwess, 2011, p.5) It is reported that the institution of tort reform will not ever, no matter how successful completely rid the system of malpractice litigation. Therefore the health care institution and its providers should focus on providing quality care and risk reduction through the establishment of a "comprehensive risk management and compliance program to improve the safety and quality of care that it should provide. An ongoing assessment of the quality of the management processes should be component of any health care provider or institution.