Malpractice vs. "Malresult"

Doctors and patients both take risks when they do business together. The physician (for the most part), only puts his wealth is at risk: He protects himself by means of malpractice insurance. But for the patient, both wealth and physical health are at risk. At present, the patient can protect himself only against the risk of incurring a ruinous financial cost for the diagnosis and treatment of his illness: He protects himself by means of health insurance. How do we create an insurance regime that provides a form of protection neither of these policies can provide?

I propose a new form of medical insurance for the patient: protection against the risks of diagnostic and therapeutic procedures that may or may not be due to bona fide medical negligence—that is, "malresult insurance."

When a patient suffers an undesirable outcome as a result of medical care, the harm may or may not be the physician's fault. More often than not, the "malresult" is an "act of God." Nevertheless, malresults are now often attributed to and treated as cases of medical malpractice (negligence). Making medical malresult insurance available and expecting patients to use it would be a step toward more fully recognizing the commercial aspects and risks of the medical situation.

People who choose to buy a house purchase home owner's insurance. People who choose to drive purchase (are compelled by law to purchase) automobile insurance. Similarly, people who choose to undergo diagnostic and therapeutic procedures ought to be able, and be expected, to purchase medical malresult insurance.

In ordinary commercial relations, premiums for insurance depend on the demonstrated behavior of the insured. Drivers with a good record pay a lower premium than drivers with a record of traffic violations. In medical malpractice insurance, this fundamental principle is largely inoperative.

Obstetricians and neurosurgeons pay a much higher premium for malpractice insurance than do ophthalmologists and pediatricians. Why? Not because they are more prone to practicing medicine negligently than physicians in other specialties, but because the procedures they perform are more hazardous than those performed by ophthalmologists and pediatricians. Accordingly, patients who submit to high-risk procedures especially need insurance to protect themselves from malresult, just as physicians who perform such procedures especially need insurance to protect themselves from malpractice.

Virtually all medical encounters are risky. The chance of dying during or after general anesthesia is one in 10,000. The risk of perforation of the colon during diagnostic colonoscopy is 0.2 to 0.4 percent; it increases to between 0.3 and 1.0 percent if it is combined with polypectomy; the overall death rate from the procedure is about one in 12,500. The chance of a pregnant woman dying as a result of her pregnancy is approximately 1 in 12,000 (in the U.S.).

The woman who chooses to become pregnant incurs risks similar, in principle, to the risks an entrepreneur incurs who chooses to engage in an activity that may be dangerous to others or himself, say, transporting gasoline. The pregnant woman exposes herself to the risk of having an abnormal baby or becoming the victim of a medical complication (for example, a stroke). It is reasonable that she bear the cost of insuring herself against these contingencies.

If an obstetrician delivers an abnormal infant, regardless of whether he is innocent or guilty of malpractice, juries are likely to find him liable for large damages. If the expectation for the purchase of insurance for malresult were as firmly established as is the expectation for the purchase of insurance for malpractice, pregnant women would be expected to protect themselves by purchasing such insurance. Obstetricians could then restrict their practices to women who have such insurance (the cost of which would be negligible compared with the cost of raising a child). As a consequence, their exposure to malpractice litigation would shrink to a fraction of its present size.

The diagnosis and treatment of disease is dangerous for the patient economically as well as medically. At present, the patient protects himself from the economic harm of the medical situation by health insurance, and expects to be protected from the medical harm by the physician's malpractice insurance. This arrangement fails to distinguish between injury the patient suffers as a result of the nature of his illness and treatment, and injury the physician inflicts on him as a result of improper care.

To the victim of a medical catastrophe, it makes little difference why such a calamity befalls her or him. Delivering an infant with spina bifida or becoming quadriplegic as a result of a hazardous spinal cord operation irrevocably changes the life of the mother and neurosurgical patient. Perhaps largely for that reason, tort law does not adequately recognize the difference between medical "malresult" that happens through no fault of anyone, and medical malpractice, that is, bona fide medical negligence. The result is that, in a suit for malpractice brought by a poor, disabled patient against a rich insurance company (and healthy physician), the jury is more likely to base its judgment on compassion for the sufferer than on the merits of the case (that is, on the question of the physician's culpability or lack of it for the patient's injury). Awarding a large sum to the plaintiff-victim "feels" like the "right thing to do" and makes members of the jury feel better.

Tort litigation cannot restore health irrevocably lost, much less bring back the dead. All it can do is take money from the insurance company (and/or the physician) and give it to the victim or his family (and his lawyers). Adding a market in patient insurance for malresult to the market in physician insurance for malpractice would accomplish two important goals. It would guarantee compensation for the injured patient, more expeditiously and securely than malpractice insurance does, and it would protect the physician innocent of malpractice from having to settle claims against him. (Insurance companies could establish a schedule of specified diagnostic and therapeutic malresults similar to the schedule of bodily injuries specified in policies for accidental bodily injury and death.)

According to the American Medical Association, 20 states now face a full-blown medical liability crisis. Data from the National Association of Insurance Commissioners shows a 750 percent increase nationally in malpractice insurance premiums since 1975. For some specialists, such as obstetricians, the annual insurance premium exceeds $200,000.

High malpractice premiums cause physicians to restrict their practices or retire early, and lead medical students to avoid going into lawsuit-magnet specialties like obstetrics and neurosurgery. While the risk of malpractice litigation affects all physicians, those most affected are specialists whose patients are most likely to suffer devastating injuries. Similarly, while all patients need malresult insurance, those who need it most are obstetrical and neurosurgical patients.

People do not go skiing to break a leg. If they do so, they are, as a rule, responsible for paying the cost of their treatment or for having insurance to pay it. People do not consult physicians to become disabled or die. If they do, they ought to be responsible for the financial consequences or have insurance to compensate them for their loss, unless the physician commits demonstrable malpractice.

Sooner or later, we shall have to confront our inconsistent expectations from modern medical technology. We demand, as a "right," the accurate diagnosis and effective treatment of disease; but when, in the process, we suffer, we feel medically and legally wronged and take to the courts. Rights and responsibilities cannot be disjoined forever. It is a delusion to believe that we can continue to assume medical risks without assuming responsibility for the harms we suffer as a consequence. The availability of insurance for malresult would radically change the medical tort litigation scene: it would place some of the responsibility for risks inherent in medical diagnoses and treatments on patients, where it rightfully belongs

I have always though Thomas Szasz is a major wacko. This article however makes a lot of sense and is very interesting, making many insightful points.

The proposal unfortunately goes against the utterly corrupt lawyer industry that dominates our government (over 50% of US Senators are shysters, for example).

since this goes agaainst their finacial interest, it will go no where.

If we look at "malpractice" as a function of risk management, the risk transfer (insurance)of a failed procedure is a factor than is ultimately paid by the patient. If the doctor pays for it, he will then transfer the cost of the insurance to the patient via higher costs.

I've always wondered if it might not be a better model for the patient to pay for this insurance directly. A charge per doctor's visit kind of insurance payment.

Opinions, comments?

If an obstetrician delivers an abnormal infant, regardless of whether he is innocent or guilty of malpractice, juries are likely to find him liable for large damages.

Which he why I can consult with the OB/GYN surgeon in town about all GYN cases but not about any OB cases. He no longer practices obstetrics due to the high malpractice premiums.

When such a situation gets out of hand, doctors simply refuse to play such a game and stop delivering babies.

Doctor Atlas, the obstetrician, is shrugging in communities all over America.

Sorry, it sounds good, but the insurance companies won't go for it.

The reason is simple: sometime everyone is going to have a bad result. Essentially, this means that everyone is going to have "bad luck insurance." It will either be too expensive or the available benefit will be too low to do much. You would be better off to just enact a socialist government, it would end up being the same thing.

A good idea, though the author takes way too long to make a simple point.

Another insurance product that is needed is health insurance that can be continued indefinitely without being tied to your job; right now, people who become high-risk for some reason can continue to get covered by their current employer's plan, but if they switch jobs what they have becomes a "pre-existing condition" and they must pay a lot more. The problem is that the health policies are structured like term life insurance -- if there were a "whole health" policy structured like a "whole life" policy, you would pay more all along but could count on medical misfortune not bankrupting you or tying you to your job.

Most healthy women don't need doctors to deliver their babies. I've given birth to four healthy boys without the assistance of any OB's. The more women come to realize this fact, the better off they will all be. OB's and their CMA rules complicate a lot of otherwise simple L&D's.

This is a perfect article for what I'm going through with my dentist. Long story short. He did a procedure on me that was unnecessary and didn't bother to do enough examination to find what was really wrong. So, six months later, all his work has to come out and I must suffer both physically and financially for his "mistake." Do I think it's malpractice. NO. He says he was working off a six-month old x-ray, and that's "acceptable" procedure, although I came in complaining of pain. I don't remember if he took an x-ray before starting the new work. I don't know if he's lying, is what I'm saying. He showed me the x-ray he said he was working from and the trouble I now have was not on it, but that x-ray was more than six months old by that time.

So, what do I do? I made a big stink and he's relieved me of what I still owed, which was about $400. I'm considering lodging a formal complaint. I don't want pain or suffering money, I just want back the money I paid for him for the work that was not necessary. Is that wrong?

I don't know.

Limit malpractice and malresult death awards to the amount of (and in addition to) life insurance the stiff had in effect before the procedure.

I.e., let each of us put a value on our unexpected demise.

How much was a life worth? Well, how much did he/she say it was worth?

Good point. One of the basic flaws in the general concept of "insurance" is that it only works in very few areas of life. Life insurance, for example, is one of the only areas of the insurance industry that works well -- mainly because the "cost" of filing a claim is truly catastrophic for the person who is insured. There is almost no fraud in life insurance, mainly because it is damn near impossible to fake your own death.

In any other area of insurance, the insurance policy in and of itself provides an incentive for the insured to act in a reckless/irresponsible manner or even file fraudulent claims.

My husband had an emergency appendectomy-his appendix had burst. There was no choice. The Doctor left a large 4 by 4 towel in him...for nine months. When my husband began having trouble,the doctor said it was complications. Finally, when my husband almost died, I insisted that additional surgery was needed in order to determine the problem. My husband really like and trusted this Doctor. It turns out (you bet we sued, we'd like to see this doctor out of business), the Doctor had come to Georgia because our laws regarding lawsuits are doctor friendly. He had numerous lawsuits against him and couldn't get insurance where he was practicing. We got a small amount (had a high/ low agreement) that paid our bills-nothing for pain and suffering (which was considerable). My husband was permanently injured. We live in a conservative state. We didn't get much money, but I wanted the Doctor out of business. He is still practicing. I am against malpractice limits until there is a system in place that will get rid of bad doctors who kill many people every year.

"Most healthy women don't need doctors to deliver their babies. I've given birth to four healthy boys without the assistance of any OB's. The more women come to realize this fact, the better off they will all be. OB's and their CMA rules complicate a lot of otherwise simple L&D's."

You are certainly correct that the odds favor an uncomplicated delivery. After all, what is more "natural" than childbirth? Then again, the occaisional episode of severe dystocia, hemorrhage, ecclampsia, or fetal distress occur even in healthy women. I told my wife that I didn't care who actually attended the delivery of my children, as long as there was an OB doc and an operating suite in the same building. There certainly are too many c-sections performed and too many internal monitors used. But who can blame the OB's, when the majority of lawsuits cite failure to employ internal monitoring or failure to perform a c-section?

Great.

Its that "most" that gets you.

Like that time I was called in from home to the ER to asses the fetal viability by ultrasound in the case of the home birth where neither the mother nor the midwife had any idea that the baby was in a breech lie. Too late. The fetus had died. In a hospital birth, it would have been a minor issue with little consequence.

That is just one case. The doctors who are still in OB in our county are often faced with rushing to the Hospital to deal with a home birth "gone bad".

You roll the dice and you takes your chances.

I'm glad your luck was 4 for 4.

As more and more OB's bail out, however, mothers will be taking their chances whether they want to or not. At that time, lawyers will then target midwives, midwife fees will skyrocket and, and Yogi Berra once said, it will be deja vu all over again.

GA is actually a very lawyer-friendly state. It takes very little to file a lawsuit here. All you need is an affidavit from a physician that wrongdoing was done. This is easier than you think. This physician needs only be in the same specialty--not necessarily board-certified, not in the same state, not even a provider of the same level of care. One can find a lawyer or a doctor from anywhere just to say something bad--there are plenty of doctors that will do it for money--not for the betterment of the profession or for the patient. Depending on what county you are sued in, the awards can be quite high--this is what drives the malpractice high. Malpractice in this state has tripled in the last 3 years as many insurance companies have left the state because they cannot afford to cover doctors here anymore.

That being said, your husband's condition was the result of negligence. I'm surprised your lawyer didn't sue the hospital as well. Every OR has a policy of counting sponges and instruments. Unless the doctor closed when the nurses told him the count was incorrect, they should have been liable as well.

I'm sorry that your husband suffered so much, and while this surgeon may very well be incompetent, leaving a sponge in a patient is generally in itself not considered malpractice by the surgeon. Consider that many 4x4 sponges may be used during a case, and when in the patient, the sponge is bloody, balled-up to the size of a marble, and nearly invisible. To count on the surgeon to remember how many sponges he used would be dangerous, frankly. I don't trust myself to accurately remember how many I use. That's why there is a sponge and instrument count performed by the circulating nurse and scrub tech before and after a case. If they don't jive, then an x-ray must be done before the patient leaves the OR. If the counts were correct in your husband's case, then any malpractice would likely be the hospital's for an inaccurate count. Now, your husband's surgeon may well have committed malpractice thereafter by not dillegently working up your husband's postoperative problems, of which a retained sponge must always be considered, and which can be easily diagnosed with an x-ray or CT scan.

The easiest way to correct the failings of the tort liability system is to do the same thing as Worker's Compensation does.

Simply, charge a flat fee for medical compensation with the recovery based on what the plan pays. Legal representation would be paid by the "Patient's Compensation Plan" but they would eschew any civil suit.

Presently, the system is set up as sort of as a legal lottery for patients and attorneys and black stars for physicians.

If it were not for Worker's Compensation as an alternative to EE law suits, there would be no industry o appreciable size in the United States.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.