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Slate's Med-Mal Hack Job

While Ted and Peter are engaging in a very thoughtful discussion on medical malptactice liability, the online magazine Slate today published a not-so-thoughtful piece by American Prospect writer Ezra Klein. Essentially, Klein hypes a proposal by Senators Barack Obama and Hillary Clinton to reform medical malpractice (S. 1784) by offering grants to care providers who agree to participate in a medical-error reduction program. Rather than build much of a case for the Clinton-Obama bill, Klein attacks the "Republican" approach--damage caps--by tackling that straw man argument, namely that caps have to do with medical malpractice lawsuits being frivolous. To argue his case, Klein regurgitates arguments made by Tom Baker and points to a few studies, including the comprehensive Harvard Medical Practice Group study of 15 years ago, the recent Studdert-Mello Harvard study, and a RAND study. He makes a mess of it.

First of all, let's look at what Klein draws from the RAND study:

A recent RAND study looked at the growth in malpractice awards between 1960 and 1999. "Our results are striking," the research team concluded. "Not only do we show that real average awards have grown by less than real income over the 40 years in our sample, we also find that essentially all of this growth can be explained by changes in observable case characteristics and claimed economic losses."

One big problem: Klein's claim to the contrary, the RAND study quote is not talking about medical malpractice awards but all tort awards in Cook County, IL and San Francisco County, CA over the time period (Klein doesn't cite to the actual study, but it's published on the first page of the first volume of Ted Eisenberg's Journal of Empirical Legal Studies (March 2004)). The study shows in essence that average real tort awards haven't gone up by as much as it would seem once you account for the fact that the number of low-dollar automobile accidents, and awards, has fallen dramatically. But that's certainly not what the RAND authors find when it comes to medical malpractice:
[W]e observe two primary changes in the distribution over time: a drop in the share of verdicts involving automobile cases and an increase in the share involving medical malpractice. The percent of verdicts involving auto cases falls from a high of about 60 percent in the 1960s to just 46.3 percent in the 1990s. The fraction involving medical malpractice increases fairly gradually over the first three decades in the sample, rising from 2.1 percent in the 1960s to 6.7 percent in the 1980s, and then increases sharply to 14.7 percent in the 1990s.

So the RAND study actually finds that the rise in high-dollar med-mal claims is part of what has driven overall average tort awards up over the last 40 years. Perhaps Klein was merely sloppy, rather than intentionally misleading; the RAND study is quoted out of context to the same effect elsewhere (see, e.g., here and here), and Klein may not have bothered to look at the actual article itself. But the fact remains that the RAND study doesn't back up Klein's argument that medical malpractice liability isn't a problem; it undercuts it.

The same is true in my view from a proper interpretation of the Harvard Medical Practice Group study and the recent Studdert-Mello results. On the former, read Richard Anderson's excellent analysis, published by the Manhattan Institute here. On the latter, upon which I've been meaning to comment in print, suffice to say that in my view it all depends on how you interpret the data. Is it really a plus for our liability system that close to 10 percent of medical malpractice cases involve no injury whatsoever? And that remaining 90 percent, 37 percent involve no medical error? Put aside for the moment the question Ted poses in the discussion, i.e., whether some medical error is inevitable and, if not reckless or grossly negligent, shouldn't be subject to liability. What the study shows is that close to half of all med-mal suits do not have both an injury and a doctor error. The study does find that the courts get the right result most of the time, especially when there's no injury, but because U.S. jurisdictions don't have a loser pays rule, the defendant has to bear the defense costs, win or lose. And, the study finds, those costs are very expensive: "The costs of litigating claims, including defense costs and contingency fees paid to plaintiffs� lawyers, averaged $52,521 per claim. Overall, these administrative costs amounted to 54% of the compensation paid to plaintiffs."

Finally, it's worth noting just why the "frivolous lawsuits" argument is such a straw man when we're talking about medical malpractice noneconomic damage caps. Such caps are designed to limit and stabilize the large, and unpredictable, damages levied in sympathy for injured patients--damages that are extremely difficult for appellate courts to review. Damage caps are effective at lowering costs, but they don't make juries any better at distinguishing between good and bad cases, and they don't make plaintiffs internalize losing defendants' litigation costs.

Which, indeed, is why reforms other than damage caps ought to be on the table. In concept, the Clinton-Obama idea of allowing doctors to more freely admit and discuss error is a good thing, though to do so we necessarily have to limit liability, as Clinton and Obama themselves note:

The current tort system does not promote open communication to improve patient safety. On the contrary, it jeopardizes patient safety by creating an intimidating liability environment. Studies consistently show that health care providers are understandably reticent about discussing errors, because they believe that they have no appropriate assurance of legal protection. This reticence, in turn, impedes systemic and programmatic efforts to prevent medical errors.

In my view, the Clinton-Obama bill is overly top-down and bureaucratic, and it doesn't offer enough liability protection to be effective, but it is worthy of serious discussion. So it's a shame Slate saw fit to publish a sloppy hack job.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.