The Public Deserves The Truth About Lawsuit Abuse and Medical Malpractice

Facts are Stubborn things

Does saying something is a fact make it one? From the context of this essay supporting tort reform, Dr. Russell Turk appears to believe so. In his essay, Dr. Turk makes a number of claims. His support for these claims is a mixture of equal parts empirical evidence, anecdotal evidence, and contempt for anyone who is not a doctor. None of the assertions he presents as fact is nearly so clear as he would have us believe. Let’s examine two of these claims, and see how his certainty holds up.

His first claim is that liability increases medical malpractice insurance premiums. He offers little support for this claim however apart from the statements that premiums are high and that many doctors get sued. For this claim to be true either the total number of tort claims must have increased or the awards in individual judgments must have radically increased. If an increase in damage awards were responsible, one would expect to see lower payouts and commensurately lower premiums in states that have statutorily capped such payouts. So, have we seen an explosion in tort claims or lower premiums in capped states? The short answer is no, we have not.

A study of malpractice claims in Texas 1988-2002 found after controlling for inflation and population growth that there had been a decline in the number of small claims (under $25,000) and that the number of large claims had remained roughly constant. (Bernard S. Black 2005). Moreover, the amounts of those paid claims only increased by 0.8-1.2 percent per year. Id.

As for the effects of capped non-economic damages, one national study found that while payouts did decline in the nineteen states that then had caps, premiums in capped states rose far faster than those in uncapped states. (Martin D. Weiss 2003) In states with statutory caps, the median annual premium increased 48.2%, while those states without caps saw a median increase of only 35.9%. Id. This suggests that while something is driving premiums higher, it isn’t malpractice claims. More recent studies show exactly the same findings.

In short, there is no evidence of an explosion in either the number of tort claims or the size of judgments. It is possible that Dr. Turk has empirical evidence that contradicts the findings of these surveys. However, as he has declined to provide any of it, we must dismiss his claim.

Dr. Turk’s second claim is that medical malpractice liability causes doctors to practice “defensive medicine” which drives up the overall costs of healthcare. His evidence for this contention consists of several anecdotes concerning patients who did not take his advice, an anecdote about an attorney, and an assertion that the rate at which doctors perform cesarean sections has skyrocketed due to liability concern. The anecdotal data is unfalsifiable, and thus worthless. He provides no evidence that defensive medicine causes an increase in c-sections, apart from his assertion. Let us examine the most empirical of his claims and see what truth, if any, it holds.

Perhaps the most common claim about defensive medicine is that it leads to massive increases in medically unnecessary cesarean sections. Dr. Turk claims that the cesarean rate in Connecticut now exceeds forty percent. He provides no citation for this. Nor does he tell us what the rate was previously, making it difficult to calculate the increase. What research I have found however, suggests his claim is simply false. This study, from 2000, finds the rate of births by primary cesarean section in Connecticut to be 12.4 percent.

In any event, what research that has been done on this question suggests that while there may have been an increase in c-sections due to liability risk, the increase has been miniscule. One estimate suggests that a sixty percent reduction in physician premiums would cause the cesarean section rate to decline 0.48 percent. (Lisa Dubay 1999) Moreover, while cesarean rates have increased, they have done so worldwide. Rates have increased even in New Zealand, a nation in which the state provides all healthcare, and which has eliminated its tort system entirely. Without better evidentiary support than Dr. Turk has provided thus far, this claim must also be dismissed.

It is clear that that the amount of money Americans spend on healthcare is increasing. There are any number of explanations for this, some more or less convincing than others. It is further clear that Americans feel they spend too much on healthcare and are searching for policy alternatives that will reduce those costs without worsening the quality of care. It is difficult to disagree with any of that. However, as we assess policy choices we need to do it in light of facts, not demagoguery or scare-mongering. Dr. Turk clearly has a strong set of policy preferences. It is difficult however, to assess the facts on which they are based, as he simply does not provide any.

Works Cited:

Bernard S. Black, Charles Silver, David A. Hyman, William M. Sage. "Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002." 2 J. Empirical Legal Studies, 2005: 207.

Lisa Dubay, Robert Kaestner, Timothy Waidman. "The impact of malpractice fears on cesarean section rates." 18 J. of Health Economics, 1999: 491.

Martin D. Weiss, Melissa Gannon, Stephanie Eakins. edical Malpractice Caps: The Impact of Non-Economic Damage Caps on Physician Premiums, Claims Payout Levels, and Availability of Coverage. Weiss Ratings, Inc., 2003.