|
 E-mail Story Print Friendly
Biz GM Sued Over Impala Fix |
Monday, November 16, 2009
Medical malpractice hotly debated
By Alan M. Malott
For the Journal
"The only way to keep your health is to eat what you don't want, drink what you don't like, and do what you'd druther not." — Mark Twain
Q. Why are medical malpractice lawsuits such a controversial issue in the health care reform debate?
A. I am not sure that any issue in the civil area has been the subject of more debate than medical malpractice litigation. This controversy did not arise with the current debate about health care reform and it will likely exist after Congress moves on to another topic.
Medical malpractice claims are essentially the same as any negligence case. Much like the driver who claims damages because a fellow motorist ran a stop sign causing a collision, a medical malpractice claim arises when a patient claims they suffered injury because a doctor made a mistake.
While we are most familiar with medical malpractice, the same concepts apply in any professional relationship. A lawyer who lets a statute of limitations expire may face a malpractice claim just as an architect will likely get sued if the building he designed collapses.
The key issues are the specialized training, education and licensing of the defendant and the type of evidence necessary to prove there was a professional mistake which caused an injury.
Few will argue that we spend a phenomenal amount of money on health care; fewer still will say doctors don't make mistakes. The current debate focuses on whether medical malpractice cases affect medical care delivery and, if so, how much it costs.
Do doctors write prescriptions, order unnecessary tests, or perform surgery out of fear of lawsuits? There is no clear answer. The New York Times recently reported on a Harvard economist's study showing "defensive medicine" accounts for less than 3 percent of health care costs. A 2006 study in the New England Journal of Medicine found that "the great majority of patients who sustain medical injuries don't sue" and that claims of frivolous lawsuits driving the medical system are "overblown."
Conversely, editorials by Louisiana Gov. Bobby Jindal, a former insurance tactician, and by the former president of the AMA claim lawsuits are among "the biggest cost drivers in the system." Statistics indicate that about 20,000 fatalities occur each year due to medical mistakes but, on average, juries find in favor of defendant doctors about 70 percent of the time.
Does limiting victims' rights and protecting a specific group because of their status, not their conduct, result in less expensive medical care?
Since the 1970s, many states — including New Mexico — have enacted laws limiting medical malpractice claims and the size of jury awards.
The New Mexico Medical Malpractice Act was first established in 1976 when availability of insurance coverage for doctors became a national issue. The purpose of the act was to make sure insurance coverage was available to doctors so they would continue to practice medicine.
Under New Mexico law, "a health care provider's personal liability is limited to $200,000.00" with any additional damages covered from a state-administered patient compensation fund. New Mexico's 1976 malpractice reform also established a procedure for screening cases prior to litigation. Cases are reviewed by nonpartisan panels of doctors and lawyers before the suit is filed. The act also set limits on jury awards for non-economic injuries such as pain and suffering at $600,000.
Despite more than 30 years of these protections, New Mexico physicians still pay among the highest rates in the U.S. for insurance coverage, and it appears New Mexicans pay more for most actual medical services than our neighbors in Texas, Arizona and elsewhere.
Does medical malpractice reform hold the key to lower health care costs? I have my doubts, but you can "Judge for Yourself."
"Judge for Yourself" is dedicated to helping the public better understand how the legal system works. Alan M. Malott is a judge of the 2nd Judicial District Court. If you have questions, contact Judge Malott at P.O. Box 8305, Albuquerque, NM 87198 or e-mail to: alan@malottlaw.com Opinions expressed here are solely those of Judge Alan M. Malott individually and not those of the court.
You also can send comments via our comment form
|
|
