Somewhere in the history of the United States, the American people received the dubious moniker of being sue-happy or in practical terms, excessively litigious. After all, we are the society that lavishly awarded monetary damages to a woman for self –induced third degree burns while precariously balancing a cup of hot coffee in the seat of a moving car. Or better yet, allowing a burglar to sue the homeowner for injuries sustained while attempting to commit a crime. While most of us are humored by such frivolous lawsuits, medical malpractice suits can be devastatingly dreadful and quite expensive for all parties involved.
In 1999, a plaintiff in New York successfully sued the physicians that delivered her for negligence in not recognizing that the umbilical cord was wrapped around her neck in utero resulting in permanent brain damage (Dodge, 2011). She was awarded over $76 million dollars (Prindilus v. New York City Health & Hospitals Corporation). While these cases may seem excessive, there is much debate on the topic of malpractice reform and concurrently ways to reduce waste and cost’s associated with our current system of healthcare delivery.
Delving into the complex judicial system can be quite overwhelming and complex particularly to a student studying for the nursing profession with essentially no interest in courtrooms and lawyers. Reasoning such, it is important to understand the basic principles behind our adversarial system and principally the right to sue for medical malpractice. Four legal elements must be proven to show that a medical provider acted negligently in rendering care and that the negligence resulted in some type of injury.
The first being a professional duty owed to the patient; essentially this is presumed whenever a physician undertakes the care of a patient (Bal, 2008). Second, a breach of duty by a physician for not adhering to the standards of professional care must be established. An obvious breach would be amputating the wrong limb or giving the wrong blood type. The legal term is called res ipsa loquitur (Latin for “the thing speaks for itself”). Third, there must be a causal relationship between the breach of duty and subsequent injury to the patient.
If no injury is sustained, then fundamentally it is legally meaningless and the medical practitioner or hospital may freely espouse a “so what? ” attitude (Bal, 2008). And lastly, the existence of damages related to the injury must be legally sufficient and a calculation of damages can be determined by the court. Monetary calculation or damages can be based on loss of work, medical expenses and related loss of income(s).
Punitive damages are rarely awarded in medical malpractice cases as these are reserved for specifically egregious cases that we as a society want to discourage (e. . , sexual misconduct with an unconscious patient or deliberate mutilation of genitalia). So if one can prove any of the above occurred during their care under a medical professional, they may be entitled to millions of dollars, right? Perhaps, but according to David Leonhardt of The New York Times, “After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim”, and ‘All told, jury awards, settlements and administrative costs – add up to less than $10 billion a year”.
This equals less than one-half of a percentage point of medical spending, so is reformation of frivolous lawsuits warranted? “According to a study by the Harvard School of Public Health, 40 percent of medical malpractice suits filed in the U. S. are ‘without merit. ’” – Rep. Lamar Smith (R-Tex. ), ranking Republican on the House Judiciary Committee, on Politico. com, Oct 1, 2009 (Preston, 2011). If the above is indeed factual, then 60 percent of medical lawsuits are warranted and the plaintiff is entitled to some form of compensation.
One proposal is to cap medical malpractice payments to $250,000 as was done in Texas in 2003 under the guise this would reduce overall healthcare costs within the state. This of course may appear to be sufficient to the individual living under the poverty line and conversely absurd to an individual maintaining an optimal degree of wealth. Recall, punitive damages are decidedly improbable to be awarded unless gross misconduct can be proven. So how much has the state of Texas reduced their overall health expenditures? According to the Dartmouth Atlas of Healthcare, “Not only has er person Medicare spending in Texas continued to exceed the national average, the data also show that such spending rose at nearly twice the national average (15. 1% versus 8. 7%) in the four years since the medical liability reform legislation was passed”.
Another promising solution to ease overall healthcare costs is to reduce and or eliminate the practice of defensive medicine. This theory essentially suggests that physicians, particularly in an Emergency Department, routinely order far more tests and procedures than truly necessary and if curbed, the increase in healthcare savings would be substantial.
It can be argued that expensive MRI’s and CT scans might not be appropriate for the patient complaining of constipation while quite applicable for the patient involved in a motor vehicle accident. So do doctors really order too many tests or are too many people seeking basic healthcare at emergency departments? Most people have no idea how much healthcare costs or for that matter how physicians and hospitals are paid.
In general terms, the more a physician does, the more she is paid and the more procedures and tests that are completed might diminish the chance of missing that minuscule detail that leads to an enormous lawsuit. So how do we discourage the general public from seeking expensive, defensive medicine when emergency departments are their only access to the healthcare system? A report by United Hospital Fund found that among 10 neighborhoods in New York City where residents frequented the emergency room for routine care, nine were among those with the highest poverty and mortality rates (Matthews, 2008).
Clearly, emergency departments are inundated with more patients than they are equipped for and losing revenue at an alarming rate by the under or uninsured patient. Several states including South Dakota, Colorado and New Jersey are leading the charge in redirecting consumers to alternative healthcare settings and teaching patients how to use the healthcare system (Matthews, 2008). These strategies include developing medical homes, on-premise health centers at schools and mobile health clinics that target disease management in rural, poverty stricken areas.
No one in their right mind would want to spend any more time in an emergency department than necessary, and any effort to facilitate access to healthcare while decreasing costs is an enormous undertaking worthy of all our attention and gratitude. Particularly to the California couple who waited five hours in the emergency department with their ill toddler. What was thought to be a common cold with fever and rash quickly diminished into liver failure and amputation of a hand and both feet (FoxNews. com, February 15, 2011).
May this be attributable to overworked staff in a crowded emergency department or failure of the attending physician to order expensive, time consuming tests and procedures? Needless to say, this case is under litigation and may continue for years with or without our knowledge of the final outcome. So what will be the “magic pill” that fixes our expensive and ineffective healthcare system? This would be answered ten different ways by ten different economists or lawyers for that matter. The prevalent American tendency is to disavow any culpability for self-induced illness.
Just as much as we enjoy juicy legal stories, so too do we enjoy our juicy cheeseburgers and fries. Alcohol consumption will never cease nor will cigarette smoking. All of the excesses that we so much adore and demand are the same choices that are forcing the rise in healthcare. Just as abstinence is 100% effective in controlling an unwanted pregnancy, all likely is that the healthier your lifestyle the probability of requiring expensive doctors and lawyers is greatly reduced. So truly the most promising fixes are those that are far less confrontational, time consuming and riddled with errors.
The chronic care model developed by Edward Wagner and his colleagues at Group Health of Puget Sound propose that the overall health system should be organized to be proactive and focus on keeping people healthy as opposed to just reacting in an event of injury or illness (Jonas & Kovner, 2011). While this notion sounds perfectly reasonable, the system would rely on the combination of healthy behavior(s) including adequate nutrition, exercise and patient compliance as well as routine visits with a well-organized team of healthcare providers.
According to Jonathan Fielding, Director of the Los Angeles County Department of Public Health, “When the fastest-growing part of the economy is also the least efficient, the economy as a whole loses its ability over time to support our current living standards” (Science Daily, 2012). So reforming our healthcare system will rely not only on the lawyers, politicians and health care workers but too on us. It truly is the duty of us all to participate and control our healthcare spending!