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Medical malpractice is any deviation by a health care provider from accepted standards of practice, whether or not it causes injury to the patient. Medical errors can occur in diagnoses, surgery, and prescriptions. In medical malpractice trials, defendants have the burden of proof, and expert witnesses testify against health care providers (including medical doctors, hospital residents, pharmaceutical companies, dentists, nurses, or therapists). Given both the injuries (fatal and nonfatal) associated with medical malpractice and the ensuing rise in costs of insurance premiums, medical liability is a social problem with significant ramifications for everyone's health care.

According to the Institute of Medicine of the National Academies, the most common medical mistake is with medication, harming about 1.5 million people annually. Another one third of all claims result from diagnostic errors (e.g., interpretation of radiology reports). Generally, medical errors cause approximately 100,000 deaths a year. Death from prescription errors increased dramatically in the past 25 years and exceeded all other causes of death except AIDS. Fatal prescription errors are even greater for outpatients than for inpatients, particularly among the elderly. This is due in large measure to increased use of mail order and Web-based pharmacies, enabling patients to self-medicate too much or suffer adverse effects of multiple medications, since they receive no direct professional guidance.

While medical malpractice lawsuits ensure the rights of injured patients and compensate them for medical negligence, the dramatic increase in lawsuits has caused a growing public concern about the ramifications of huge settlements. As liability insurance premiums rise for health professionals, those additional costs are passed on to consumers in the form of higher medical fees for goods and services. Furthermore, fear of lawsuits forces both hospital staff and physicians to prescribe routinely tests once considered unwarranted but now legitimated as "defensive medicine," at a cost exceeding $50 billion annually.

Medical errors and preventable adverse drug events are causes for serious concern. Studies indicate that more than 500,000 drug-related injuries occur among Medicaid or Medicare recipients in outpatient clinics--the majority of whom are elderly, bilingual, and poorly educated. For example, poor women who are heads of households typically utilize outpatient clinics rather than private doctor offices. This large segment of society typically experiences poorer health conditions and has great high-risk medical problems. The actual size of malpractice awards is impossible to calculate, since so many lawsuits are settled before they reach trial. The Congressional Budget Office reports that 15 claims are filed for every 100 doctors each year, and that about a third of the claims result in insurance payments.

A growing number of doctor's groups allege that medical malpractice lawsuits are responsible for the increasing medical malpractice insurance rates. Many doctors, especially in states with higher premiums, move or retire, resulting in severe shortages in some states and within such specialties as orthopedics, neurosurgery, and obstetrics-gynecology.

A 2003 congressional report stated that premium rates grew rapidly since 1998, particularly in the area of obstetrics-gynecology, although these rates varied widely by state. Multiple factors contributed to these increases, including insurers' losses, declines in investment income, a less competitive climate, and climbing reinsurance rates. Advocates of tort reform want a fairer assessment of the relationship among claims, insurance rates, and the overzealous litigation suits by trial lawyers. Earlier, a 1999 study by the U.S. General Accounting Office reported that the single most important factor in the dramatic increase of malpractice premium rates was the falling investment income of insurance companies as a direct result of medical malpractice claims.

Obstetrics, with the delivery of babies, is especially prone to malpractice claims, so insurance rates in most states far exceed $100,000 per doctor. Unfortunately, 1 in 200 babies is born with some form of injury. Although a neurologically impaired infant or neonatal death is a rarity, it provokes strong emotions of empathy for the infant's family. When litigated, such cases often end with unusually large settlements awarded to the families. Increasing professional liability premiums and the fear of lawsuits have caused obstetrician-gynecologists (OB-GYNs) to make dramatic changes in their practices. According to the results from a 2006 American College of Obstetrics and Gynecology Survey, 70 percent of OB-GYNs considered retiring or moving; 65 percent decreased the number of high-risk obstetric patients and stopped performing and offering certain types of high-risk medical care. Eight percent stopped practicing obstetrics altogether. Undoubtedly, such an environment deprives women of all ages of access to experienced health care providers, since the average age of retirement for obstetricians is 48--an age once considered the prime of a professional medical career.

Public opinion supports limits on malpractice damages. In a recent Gallup poll, three fourths of respondents wanted a maximum amount set for awards for patient emotional pain and suffering. Thus, when physicians, medical associations, and insurers joined forces to pressure legislators to limit the amount of medical malpractice awards, lawmakers were receptive. The subsequent tort reforms placed caps on noneconomic damages--the so-called pain and suffering and punitive damages--which led to savings, lower premiums, and reduced claims in states that placed caps on non-economic damages. Presently, 34 states have such caps, according to the National Conference of State Legislatures, and they have lower insurance costs than the remaining 16 states.

Undoubtedly, both health care providers and patients have suffered through the medical liability "crises" of the past 30 years. Legal, medical, and perceptual barriers to reducing medical errors must be addressed to ensure the health of all citizens of society. While systemic problems reside in the structure of medicine today, especially with regard to the delivery of medicine, some advocates urge the creation of a federal agency to collect and analyze data on medical errors and to make recommendations on procedures for their control and reduction.

References:

1) Baker, Tom. 2007. The Medical Malpractice Myth. Chicago: University of Chicago Press.

2) Schroder, Jack. 2006. Identifying Medical Malpractice. 3rd ed. Oakland, CA: Catalpa Press.

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