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What the Gosnell case tells us about medical malpractice efficacy

| 3 Comments


One of the primary arguments for limitless medical malpractice liability is the claim that it is punishes bad doctors: when bad doctors keep getting sued for injuring patients, their insurers will drop them or raise their rates so high that they won't be able to practice any more. Between that and deterrence, the quality of medicine will improve. Reformers disagree: I take the position, for example, that medical malpractice litigation does such a poor job of distinguishing good doctors from bad doctors that the quality effects are negligible and that, at the margin of the status quo, the deterrence of malpractice is outweighed by the deterrence of practice. Lawyers are interested in extracting wealth from the deep pocket, and the current system allows them to do that for generic bad results with little correlation to the quality of the defendant's work. For example, nursing homes that improve from the lowest decile of performance to the highest decile of performance reduce their chances of being sued from 47% to 40%. The incentive of lawyers to go after bad doctors isn't much more than the incentive of lawyers to go after good doctors.

Into this debate, consider the Kermit Gosnell case, which I think has resonance beyond just the politics of abortion and media bias. Leave aside the undeniable horrors of "snipping" dozens or hundreds of babies born alive and then murdered on an operating table; the weirdness of the feet being preserved. Gosnell was butchering patients: treating them with unsterilized instruments (and spreading STDs in the process), anesthesia performed by untrained teenagers, causing infections and death. From the grand jury report:

One woman "was left lying in place for hours after Gosnell tore her cervix and colon while trying, unsuccessfully, to extract the fetus," the report states. Another patient, 19, "was held for several hours after Gosnell punctured her uterus. As a result of the delay, she fell into shock from blood loss, and had to undergo a hysterectomy." A third patient "went into convulsions during an abortion, fell off the procedure table, and hit her head on the floor. Gosnell wouldn't call an ambulance, and wouldn't let the woman's companion leave the building so that he could call an ambulance."

And it's not like Gosnell was practicing in a jurisdiction where he was shielded from liability. His cat-urine-soiled offices were in the judicial hellhole of Philadelphia, where the courts are as trial-lawyer-friendly as any in the nation when it comes to transferring wealth from doctors and patients to lawyers.

Yet what did the trumpeted malpractice lawyers and liability of Philadelphia do to stop Gosnell? Nothing. Elementary discovery in a case involving a single one of his injured patients would have uncovered abuses meriting bankrupting punitive damages in even a jurisdiction using a model ATRA medical malpractice liability statute, much less Pennsylvania. But despite this deep-pocket incentive, Gosnell wasn't caught until federal agents accidentally came across his nightmarish clinic in the course of a drug investigation.

I suggest that the case of Kermit Gosnell should cause people to reevaluate their assessment of the role malpractice liability plays in sussing out bad doctors and improving the quality of medicine. If Philadelphia's judicial hellhole couldn't stop Gosnell's medical hellhole, why shouldn't Pennsylvania adopt Texas-level reforms, reduce medical malpractice expense, and costlessly eliminate the transfer of wealth from middle-class patients to lawyers in the 1%?

That said, the Gosnell case has a message for civil justice reformers, too: the public policy of reducing the role of civil liability in disciplining doctors only makes sense if the public regulators are doing their job and shutting down the bad doctors. The Pennsylvania Department of Health didn't do its job here, despite multiple opportunities to do so. It seems Pennsylvania citizens get the worst of both worlds: a liability system that benefits lawyers at the expense of doctors and patients without any offsetting improvement in healthcare results, and a regulatory bureaucracy that refused to do its job despite multiple reports of abuses.

3 Comments

The idea that malpractice weeds out "bad doctors" is just dopey. It is put forth by academics in law schools who have a fantasy of being the "tort police."

First of all, only 1% to 7% of adverse outcomes will ever file suit. In 80% or so of the cases, the plaintiffs will either lose or have their case dismissed. Or have it settled for a minimal amount. Since damage thresholds are probably north of $200 K, most potential cases aren't going to be considered by plaintiff lawyers. Add in new restrictions in many states limiting who can testify as an expert, and very few plaintiffs are going to win anything.

It is difficult to get jury sympathy for welfare patients, so they don't make good plaintiffs. And the jury system for tort cases is very expensive and highly inefficient.

Whatever deterrence there might be from the threat of med mal occurred two or more decades ago when hospital and clinic risk managers incorporated more expansive testing and treatment for every possible contingency. So for that case which may occur once in a thousand, 999 patients are subjected to excessive testing or treatment. But that occurred years ago. Now it is just considered standard of care.

Peer review isn't really a good solution, either. It simply selects personality types which fit into the corporate/clinic/hospital mode while rejecting more independent types.

Abortionists have always been given a free pass. The pro-abortion crowd in state legislatures balks at any kind of scrutiny. Same thing occurred in Kansas when HHS Secretary Sebelius was governor. She ran complete interference for George Tiller before he was killed. He was a major contributor to her and she was a pro abortion advocate. It was a political marriage made in heaven.

I have my doubts about whether you have any experience with patient safety cases. While it has been the better part of a decade since I've tried a doctor error case, without actual experience in the trenches, it's easy to miss the mark. I don't know of anyone who thinks that these cases are about deterrence via insurance rates.

The crisis idea that "malpractice" verdicts are driving doctors out of practice is likely misguided at best, as the Texas experience has revealed. Draconian limits on patient claims have done little or nothing to increase physician numbers in Texas.

More to the point, why does a perception of crisis--whether true or manufactured--create a special exception to the Seventh Amendment? Or are constitutional rights conditional and subject to special exception for doctors, transnational corporations, banks, or anytime academics perceive, rightly or wrongly, that juries "award too much money"?

Have to agree with the earlier comment that you are missing the mark by failing to account for political protection of abortion providers.

It is ridiculously hard for a patient to find competent counsel who can and will pursue any patient safety case. There are many barriers to otherwise meritorious claims. A patient safety case that might become a referendum on the importance of protecting reproductive rights is particularly risky (depending on venue), But that's okay, I'm sure someone who has $100,000 in cost money to burn will take it. Or maybe each patient's family is independently wealthy and can fund the case?

Nothing in the Seventh Amendment precludes legislative limitations on liability, and anyone who suggests otherwise isn't to be taken seriously. But I look forward to your constitutional challenges to the legislatures that abolished the torts of seduction and alienation of affection.

It's refreshing that you acknowledge that medical malpractice litigation has nothing to do with deterrence, but that's not what reform opponents or their talking points argue. Without the deterrence argument, there's absolutely no public-policy reason not to enact the full set of med-mal tort reforms.

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Center for Legal Policy at the
Manhattan Institute
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