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Bob Herbert's "Malpractice Myths"

"This is all about greed," Bob Herbert explains, talking about medical malpractice. ("Malpractice Myths", NY Times, Jun. 21). Very few would disagree with this sentence standing by itself. But Herbert, without any obvious irony, is ascribing this sin to insurance companies, rather than to the trial lawyers who have caused losses paid per doctor to increase 1300% since 1975--more than twice the rate of medical-care inflation. This is not a question of a handful of incompetent doctors; more than half of all doctors have been sued for malpractice.

Herbert's piece is unencumbered by such trivial things as data. He baldly asserts that "there is no evidence that soaring malpractice premiums are the result of sharp increases in the amounts of money paid out for malpractice claims." This is utterly false, as our Overlawyered.com site documented Jul. 29 and Mar. 24.

The GAO found (as did HHS and the House Joint Economic Committee) that increases in malpractice rates were due largely to the high payoffs in legal claims. A study in Contingencies, the journal of the American Academy of Actuaries, who doesn't have a dog in this fight, also found that malpractice premiums are directly related to malpractice losses.

No, insurance companies have not promised to lower rates in response to reform, but that's because the reforms being proposed are minor; again, both the government and the actuarial studies showed that states that endorsed such reforms experienced a slowing in their premium increases. According to HHS, "Malpractice reforms in the 1980s led to a 34% decline in malpractice premiums in those states that enacted reforms compared with states that did not enact reforms."

Herbert claims that medical malpractice insurance and claims is only 1% of health-care costs; but that figure ignores the billions spent on inefficient defensive medicine, on hospital in-house lawyers, on time doctors spend with lawyers instead of with patients, and on self-insurance. It also ignores the effects of runaway claims on specialists such as obstetricians that face six-digit premiums--even the trial-lawyer front group Center for Justice and Democracy, who Herbert relies upon, admits that the average OB/GYN pays about a quarter of her net income in premiums, and that figure is much higher in "crisis" states. If it really is the case that only 2% of malpractice injuries result in suits (and, again, the Center for Justice and Democracy has claimed elsewhere the number is much higher when it suits their purposes), it goes to show how broken and inefficient the malpractice litigation system is; whatever it is trial lawyers are protecting, it's not the rights of injured patients.

Herbert's column becomes especially incoherent when talking about the case of Deborah Rayburn, who sued over a tubal ligation gone wrong. The lawyers agreed to a settlement, but Rayburn "would have preferred to go to trial, she said, not because she was looking for a big payday, but because all the details of her case would then have come out publicly." The tragically-injured plaintiff who claims not to care about a payday is rapidly becoming a cliched op-ed archetype, and I've never understood why. Why is a lengthy trial--taking up the time of lawyers, doctors, experts, and jurors--to pointlessly resolve a settled dispute a desireable result? Why does Herbert think medical malpractice reform has anything to do with Deborah Rayburn's preference for a trial to a payday (a preference that apparently wasn't strong enough to insist her lawyers refuse to settle)? If Herbert wants to see greed, he should see the reaction of trial lawyers if he proposes that they replace their settlement paydays with pro bono public inquests to make people like Deborah Rayburn feel better about their misfortune.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.