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medical malpractice panel, v.2

I just got back from a panel discussion on medical malpractice reform. I'm glad to see that hospital life goes on as usual. This means residents and medical students rushing into grand rounds with their take-out lunches, gobbling down the food while they look at xeroxed New England Journal articles, and occasionally getting paged in the middle of the presentation.

There were actually some residents who weren't reading or getting paged, and who actually seemed to be paying attention to the presentation, so don't let me give you the impression that no one was listening (in other words, this wasn't the typical internal medicine grand rounds...).

Anyway, back to the discussion. The first speaker tried to convince us that the current system was broken, with some interesting statistics:

>50% of physicians will be sued at some point in their careers
<5% of other professionals get sued (lawyers, accountants, etc.)

(Suggests that medical malpractice is somehow unique...)

<10% of the patients who are injured actually sue
>50% of patients who sue have not been injured
>75% of suits result in no payment

(Suggests that the current system is woefully inefficient...)

The debate that followed was essentially concerned with this question: how bad does our current system have to be before we should take the inherent risk entailed by trying something different?

As usual, some speakers pointed to the problems with the current system and asked, "we must try to do better!" And others gravely responded, "but trying something new entails the risk that we might make things worse, so let's not try anything!"

One panelist forcefully and articulately advocated a Swedish-style system of administrative (and not judicial) compensation of injured patients. As I understood it, every injured patient would be paid out of a common pool of tax revenue set aside for the purpose, but would retain the right to sue in court. This system would ensure that virtually every patient was reliably compensated, instead of just those patients that take the initiative to sue and who are lucky enough to prevail in court.

It was immediately objected (and rightly, I think) that patients in this country wouldn't trust the system. Most of them would contest whatever offer of compensation they received on the theory that (duh!) whatever was offered was less than what they deserved. This of course is the "Americans live in a society centered around competition and conflict and thus see every transaction as a win/lose proposition" argument. Of course, the cooperative and reasonable Swedes don't think this way, which is why their system works for them. It can never work here.

It was objected that no one wants a tax hike to fund another bureaucracy. True, but the bureaucracy is supposed to replace the privately-funded litigation that we have now. The argument is that less money overall would be spent on medical malpractice compensation under an "administrative" system than under a "judicial" system. (Too bad no one made that argument.)

The discussion suffered from two major inadequacies. First, the scope of the issues wasn't focused enough. The debate ended up being about "change" vs. "no change" broadly speaking, without enough discussion about specific issues.

Second, the panel suffered from the lack of representation of two important groups. Unfortunately, the insurance company CEO was not there, and as a result too little attention was paid to the role of malpractice insurance firms. The panel would also have benefitted from a representative of an "injured patient." As it was, we heard a lot about what patients want, but al of that could have been made more concrete with a patient on the panel.

Overall, a good discussion. My own hunch is that the current health care system is unsustainable and will collapse sooner or later, mandating wholesale change from the ground up whether we want it or not. The only question is, when? We might have some time to try some piecemeal changes, or we might not.


You also fail to mention that the "interesting statistics" of the first speaker seemed to be combining various studies with non-specified methodology. The speaker seemed to claim that of the people who sue, at all. It seems that would get tossed out of court for failure to state a claim pretty easily.

Basically, I think that we were getting the damn lies type of statistics there.

But the second speaker just set off all my "sleazeball lawyer" alarms. I mean, here is a person with every incentive to keep the status quo. If the average administrative cost of a malpractice suit if $45K, it's going into the pockets of people like him. So the fact that he made a bunch of non-arguments didn't sit well with me. "If it seems to be too good to be true, it probably is." Well, reasons work well. Too bad I didn't hear anything except haphazardly asserted correlations ("If litigiousness is so bad for our society, how come the biggest boom years were the ones that had the most lawsuits filed, huh?" Um, maybe because more people were doing more business, and there were more things going wrong? You don't mean to suggest that the lawsuits drove the economic expansion, do you?) and platitudes.

I agree. Any time someone with an overwhelming financial stake in an issue argues the position that will inevitably reap him or her financial benefit, it tends to destroy his or her personal credibility. It also makes me question the ultimate validity of the position he or she is arguing.

If a position can't be adequately promoted by a relatively impartial party, that position is arguably inherently flawed.

I can understand someone arguing for a position that would reap them financial benefit, and I'm willing to listen. But sheesh. MAKE AN ARGUMENT, not a cliche!

I found your comment that Americans live in a society built around competition to be very interesting. Would you care to expand upon it? I certainly agree that Americans are very competitive and obviously our legal system is adversarial in nature but I'm curious to see how you think society in general is organized to be competitive. Do you think its a function of the ppls inherent character or more institutional in the way our gov and society in generla functions?

I agreed with the speaker who argued that our competitive society would make it unlikely that individual patients would 'unilaterally disarm' by meekly accepting the compensation that any no-fault administrative scheme would offer them.

I don't think the American people are intrinsically any more competitive than anyone else. It's just that I think most Americans recognize that, for whatever reason, if you don't take what's yours in this country, other people will, and you'll probably get screwed.

Under these conditions, everyone feels they must compete at all times or be left behind. My own suspicion is that the competitive nature of our society is a mix of folk mythology, the historical imposition of the economic laissez-faire model on government by economic elites, etc.

I'm sorry I don't have more time right now to comment further, because I think it's an interesting question. Perhaps if I'm lucky I'll return to this subject later...