Talk:Medical malpractice

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I think the political controversy section should look something like this:

Contents

[edit] History of the insurance debate

Most medical providers and medical institutions have liability insurance, which protects them from claims up to the limits of their coverage. This is called indemnity. Insurance policies also provide for the legal defense in the case of a lawsuit, including the legal expenses and costs of experts and trial preparation. Some providers do not have insurance at all, or are self-insured. Malpractice insurance is regulated by each state, and rates vary depending on the type of specialty and, sometimes, the claims history of the person or institution. Rates are set each year.

Claims that there is a problem with malpractice insurance. According to the Insurance Information Institute, early in the 1970s, many insurance companies left the business due to the “rising claims and inadequate rates.” Responding to the lack of insurers, many doctor-owned malpractice insurance companies were established to provide affordable coverage. These companies had not experienced deficits and we(re) initially able to charge low rates. As time passed, these doctor-owed insurance companies constantly lost money on patient claims and were forced to increase the rates. Today, nearly fifty percent of medical malpractice insurance companies are doctor-owned and operated.[1] Insurance rates have continued to increase faster than the rate of inflation, though less rapidly in states that have passed tort reforms; according to the United States Department of Health and Human Services, "[m]alpractice reforms in the 1980s led to a 34% decline in malpractice premiums in those states that enacted reforms compared with states that did not enact reforms."[2].

Tort reform advocates claim that the study by the Center for Justice and Democracy reached its conclusion by deliberately omitting data from a health insurer, St. Paul, that left the business after a multi-billion dollar loss; when that data is included, the study results in the opposite conclusion: "In failing to take account for the market exit of some of the industry's largest players, mismatching premiums and losses, hand-picking dates to skew results, and painting a deceptive picture of the insurance industry's profitability, CJD's research is at best shoddy and at worst intentionally misleading."[3] An October 2005 study by the Health Coalition on Liability and Access found that the CJD study was "critically flawed" and that, once those flaws were fixed, there is "no evidence that medical malpractice insurance is overpriced."[4]

The argument that there is no insurance problem. The Center for Justice and Democracy released a study arguing that insurance companies have enjoyed increasing profits while medical malpractice claims and payouts remained constant.[5]

Economists have recently studied several questions central to the medical malpractice debate. While it has been claimed that excessive jury awards are responsible for increases in malpractice insurance rates, verdicts constitute only 4% of the medical malpractice payouts, with insurance company settlements comprising 96% of the payouts.[6] The same researchers found that the increases in payouts have been consistent with increases in the costs of health care.[7] Economists from Dartmouth College and the National Bureau of Economic Research have also found that "increases in malpractice payments made on behalf of physicians do not seem to be the driving force behind increases in premiums," and that "there is little evidence of increased use of many treatments in response to malpracticed liability at the state level, although there may be some increase in screening procedures such as mammography."[8]

[edit] Today

There are various bills that have been proposed in the U.S. Congress and in several states that would cap non-economic damages in medical malpractice cases at $250,000, and some proposals have included provisions permitting states to pass legislation that would override such a cap.

The arguments for reform. The Congressional Budget Office estimates that the bill will reduce medical malpractice insurance rates in states that do not have caps by 25-30%. Some within the medical profession, insurance industries, and numerous lawyers and economists argue that the current American medical malpractice litigation system increases the cost of health care and threatens access to health care for all Americans. Supporters of tort reform contend that studies show that very few medical liability lawsuits stem from what they call true malpractice that very few cases of actual malpractice end up in suits, and that malpractice verdicts are just as likely to punish innocent doctors as wrongdoers. They argue that the cost of defensive medicine, in which physicians order tests or treatments or hospitalizations for medico-legal rather than clinical reasons, is as large as $50 billion per year, money that could be better used to improve health care elsewhere. The American Medical Association argues that excessive malpractice liability deters many doctors from practicing, and that the problem is especially acute for obstetricians and neurosurgeons; others dispute this.

Reform advocates suggest that N.Y. Times columnist Herbert's claim that the "insurance companies are doing fine" is directly contradicted, however, by the fact that in 2003 insurance companies had a combined ratio of 137.5, paying out $1.375 in medical malpractice defense costs, judgments, and settlements for every dollar collected in premiums.[9] Herbert's analysis was heavily criticized by supporters of tort reform as inaccurate in many other respects.[10], [11], [12].

The arguments against reform. In response, some consumer groups, patient rights organizations and lawyers who handle medical malpractice claims argue that the quality of health care in the United States of America is among the best in the world, and they contend that this results in part from the ability of citizens to obtain an effective judicial remedy when they are victimized by medical malpractice, and that any extra cost imposed is justified by what they consider the extra benefit. Defenders of the current system claim that there is virtually no frivolous medical malpractice litigation, because the high cost of pursuing medical malpractice claims, and the alleged reluctance of physicians to testify against their colleagues, forces plaintiffs' lawyers to spend large sums of money to litigate even minor malpractice claims. Bob Herbert, an opponent of tort reform and a columnist for the New York Times, writes: "the problem when it comes to malpractice is not the amount of money the insurance companies are making (they're doing fine) or the rates the doctors have to pay, but rather the terrible physical and emotional damage that is done to so many unsuspecting patients who fall into the hands of careless or incompetent medical personnel....What is needed is a nationwide crackdown on malpractice, not a campaign to roll back the rights of patients who are injured."[13]

Related discussions There are many other disputes relating to the question of medical malpractice reform; see tort reform and non-economic damages caps.

Common Good has proposed creating specialized medical courts to improve the American system; opponents of tort reform object to the idea.[14]

[edit] First section (after the introduction)

Needs some work. This really slants toward one side. Although the side opposing reform (for lack of a better term) is discussed in one paragraph, it is quickly rebutted. However, the 'pro' slant in the following paragraph is not rebutted. This is a very slanted article, still. I will try to work on it, as time permits.MollyBloom 02:55, 25 June 2006 (UTC)


[edit] This is an article on Medical Malpractice NOT TORT REFORM

This is NOT a tort reform article. IF WIkipedia is to be taken halfway seriously as an encyclopedia, it should be written as one, and not a political debate forum. IN fact, there should not even be an entry on 'tort reform'. THe online Encyclopedia Brittanica does not have one, for good reason. The tort reform article, for example, uses references - both for and against tort reform - that violate WIkipedia 'reliable sources' guidelines. Almost ALL of them do, because the article is by defnition a political debate, and not an encyclopedic entry.jgwlaw 01:42, 10 July 2006 (UTC)

An article on medical malpractice should inform the reader what the medical and legal definitions of medical malpractice are. It is not a propaganda opportunity to get one's point of view out on tort reform in the guise of informing. Accordingly, I deleted the external references as not really germane to this article. Most, if not all, were polemics regarding lawsuits. If I inadvertently deleted one that was not a polemic and actually was informative as to what malpractice is, how often it occurs, etc. feel free to put it back. Gfwesq 02:38, 12 July 2006 (UTC)

[edit] Medical Malpractice - worldwide

This artilce needs a worldview, and statistics on actual medical malpractice, that are not political. WIkipedia is not a vehicle for tort reformists or other political views. IN fact, no *real* encyclopedia would even have an entry on tort reform -- I checked. I would welcome international discussion on areas of the law, or statistics - I'm afraid I am not well versed in international law.jgwlaw 02:32, 10 July 2006 (UTC)

[edit] Corrections to misstatements of law

I made corrections to misstatements of legal process and the law as follows:

  • The elements of medical malpractice (and cited a Yale reference) -- The basic elements (in US law) are virtually the same as common law tort, based on English law. However, I again welcome legal differences, if any, in other countries about which I am unfamiliar.
  • Settlement -- First, there is no need of an admission of liability, so I changed that. Second, motivations for settling are varied, so I removed the speculation. jgwlaw 05:44, 10 July 2006 (UTC)
  • Legal process -- the settlement does not occur before the filing of a case; I also added appropriate jurisdiction; and changed the comment on insurance and lawyer bringing the case. Cases can and are filed pro-se. There are doctors who choose not to take out medical malpractice insurance, It is better to keep this factual, and within the parameters of the legal process.
  • Judge and Jury - are not always untrained in medicine. Again, making generalizations is not wise in discussing legal issues. Secondly the fact-finder is not required by law to rely on experts. Experts must establish the standard of care, but the fact-finder must decide as to which expert is more credible, in the frequent case of 'dueling experts'. Expert witnesses must be qualified through a Daubert process (federal courts) or the relevant state court evidentiary rule (In Florida, it is Frye rule). I am not sure how much we want to go into this - input welcome.

[edit] NOT Tort Reform; Political articles and POV

I want any objective editor to look at this edit by Oliver and justify how this is accurate (with references and correct reading of such), and anything but POV. I cannot comprehend how anyone would dare try to turn Wikipedia into a blatant political vehicle, but it appears to be happening.

The group, Common Good has proposed creating specialized medical courts to improve the American system where almost 60% of all plaintif judgments are now consumed by attorney fees & court costs. These specialty "Health Courts" (similar to existing administrative tax or workmen's comp court proceedings)whose hallmark would be medically-trained, full-time judges making precedent-setting decisions about proper standards of care, would remedy the unreliability of our current system. Proponents believe that giving up jury trials and scheduling noneconomic damages such as pain and suffering would lead to more people being compensated, and to their receiving their money sooner. Support for this alternative comes from sources ranging from The National Law Journal [1],the USA Today editorial page [2], The Wall Street Journal [3], Forbes magazine, the AMA, and the American College of Surgeons. The Harvard School of Public Health has been working with the Common Good initiative[4]in conducting research to answer unresolved health court policy questions by analyzing individual state constitutional impediments to health courts, doing projected cost analyses, developing a tiered schedule for noneconomic damages-which would have upper limits-and working out the standards for compensation. Opponents of tort reform object to the idea.[5]

Now, the entire paragraph is pro 'tort reform' with one sentence that "Opponents of tort reform object to the idea." Can ANYONE justify NPOV on this? Also, the 60% reference is from an uncited report and the 60% not only misrpresented, but it is also out of context. THe actual report concluded that there was no effect on the cost of health care. jgwlaw 01:56, 11 July 2006 (UTC)

I'm sorry if you're anable to understand the relevence of this to malpractice, but it is indeed an increasingly popular idea being debated (this past week) in congress. This is an area where tort reform & med-mal overlap. There is not much POV in Common Good's ideas of pointing out the inefficiency, irrationality, and unpredictability of how we process med-mal claims American style.Droliver 00:07, 20 July 2006 (UTC)
The above says all that needs to be said about Rob Oliver's POV. Common Good is a 'tort reform' advocate. And, as usual, Rob does not provide references for his claims. I have explained the objection to the above paragraph in detail. jgwlaw 00:18, 20 July 2006 (UTC)

I agree the info as added was propaganda. That said, this information and a larger section on criticism of medical malpractive lawsuits should be added to this article, just in a NPOV format. As it is now, the article is solely lacking because it lacks any criticism section at all. I'm going to work up a NPOV section on this, which I hope people will support.--Alabamaboy 14:25, 4 August 2006 (UTC)

[edit] External link

I am an administrator here on the Wikipedia and am functioning as a neutral third party. Mike Teflon (talk) and I have been discussing linking to his site. Specifically, he would like to add a link to [http://www.millerandzois.com/malpractice-complaint-medical.html this article on medical malpractice. He believes it adds information which would be of general use to readers of this article. However, it is on a site that belongs to Mike Teflon so I suggested that he put the link up for discussion amongst the other editors of this page. Please speak up one way or another. If nobody objects within a week or so, I've said Mike can go ahead and add the link. If people object, though, my understanding is that Mike will not add the link. If you wish to reach me (that is, not Mike Teflon), please contact me directly on my user talk page. Thanks. --Yamla 02:10, 20 August 2006 (UTC)

This is well said, thank you. I believe this is one of the few sample medical malpractice complaints available on the web and I think it would be of particular interest for someone using Wikpedia for the basic type of research the typical user might engage in who was reaching this topic on this medium. Thanks.Mike Teflon 17:08, 20 August 2006 (UTC)

Linking to a plaintiff's attorney's home page which actively solicits clients adjacent to this sample is inappropriate. There would seem to be many other sources if you want to demonstrate thatDroliver 01:15, 17 September 2006 (UTC)
I agree--that is a totally inappropriate link. And not that it should matter, but I'm also an admin here.--Alabamaboy 16:26, 21 September 2006 (UTC)

[edit] criticims section

I'm somewhat disappointed that the segment re. criticism of american medical malpractice has been neutered & now includes sentiments that in fact belittle the critical view. Laying out the arguments for the status quo: unpredictability, expense, and the fall-out effects of affecting available medical services is an important theme for providing context for the med-mal climate in the USDroliver 02:05, 22 September 2006 (UTC)

[edit] Merge proposal

I suggest that this article should be merged with medical error. Comments? -- FP (talk)(edits) 10:26, 18 November 2006 (UTC)

There is no support and some opposition to a merge so I will leave the articles separate. -- FP (talk)(edits) 04:24, 25 November 2006 (UTC)
Agreed. This is an entirely different article, although there obviously will be some overlap. Jance 05:08, 11 December 2006 (UTC)

[edit] contrasting view doesn't really contrast

The criticisms section summarizes one criticism, that "an estimated 60% of malpractice lawsuit expenses are now consumed by administrative, or transaction, costs (eg, lawyer fees, expert witness charges, court costs), as compared with 25% to 30% for systems such as workers' compensation". It then goes on to say that: "In contrast, trial lawyers have asserted that the medical malpractice crisis is a myth ... According to [a study], 'the vast majority of expenditures go toward litigation over errors and payment of them.'" But of course the defense that a large portion of expenditures go towards litigation does not contrast with the criticism that a large portion of expenditures go towards litigation. --Delirium 10:55, 1 January 2007 (UTC)

[edit] "Outpatient"/ "outpatient settings" undefined

I think it would be helpful to define what "outpatients" are in the Statistics section. It would also help to give examples of what the "outpatient settings" in the statistics refer to--are they homes? Kennard2 02:16, 3 January 2007 (UTC)

[edit] "Healthcare" v. "Health care" -- which one?

Both spellings are used on this page, and I'd prefer consistency within *this* article (even if it conflicts with other pages' use) rather than being only partly consistent. Choosing one makes it easier to change later :)

timbo 21:17, 11 January 2007 (UTC)


[edit] Removed POV tag

No explanation was given. There's no way to fix the article if you don't explain, and tags for the sake of having tags does nothing but clutter up the Wikipedia. Could you please clarify what the problem is? MoodyGroove 20:30, 3 February 2007 (UTC)MoodyGroove

The article is not POV. Originally, the article was almost all about tort reform and nothing about the purported subject. I and others have since created an actual article on the subject of medical malpractice =- what it is, what the claim involves, and some statistics by NEMJ on medical error.Jance 05:22, 6 February 2007 (UTC)

[edit] Restoring POV tag

Reasons for restoring the POV tag.

  1. The IOM study is (1) disputed as an overestimate[15][16]; and (2) refers to "medical error", which is a different concept from "medical malpractice." Yet it is treated as unalloyed fact here.
  2. The Harvard School of Public Health study is cited as "supporting the trial lawyer" position. But critics also cite it as supporting their position.[17] Rather than characterizing the study, why not simply report its statistics that 40% of suits demonstrate no medical error or no medical injury and that the American litigation system erroneously gives compensation to the undeserving and withholds it from the deserving at an error rate greater than 27%, and let people decide for themselves if those numbers support the position of trial lawyers or reformers?
  3. The GAO report (fn 9) is mischaracterized to minimize the effect of malpractice litigation on malpractice insurance. "GAO found that losses on medical malpractice claims—which make up the largest part of insurers’ costs—appear to be the primary driver of rate increases in the long run."[18]
  4. Evidence of the impact of malpractice law on defensive medicine is missing from the article.[19]
  5. Statistical evidence that malpractice law does affect doctor location decisions and access to health care is missing from the article. E.g.[20] Instead, this demonstrated fact is characterized as merely being "asserted".
  6. In the footnotes, Towers Perrin, which takes no position in the reform debate, but releases statistics trial lawyers don't like, is falsely characterized as an "interested party"; its critics, a trial-lawyer-funded leftist group, are treated as neutral. The Towers Perrin figures are consistent with other figures, including those cited by the New York Times, no reform supporter it.

-- TedFrank 01:21, 9 February 2007 (UTC)

I would also recommend a discussion of the famous Merenstein JAMA article on medical malpractice (JAMA link), which I discussed here. -- TedFrank 04:52, 20 February 2007 (UTC)

I agree that these are all issues to be corrected in this article. Does anyone else have problems with doing this? If not, I say we go for it.--Alabamaboy 14:34, 20 February 2007 (UTC)

[edit] POV?

A couple of issues: first, I agree that medical error is not synonymous with medical malpractice, and these should be separated (after all, there's already a separate article on medical error). For example, when inserting a central line, there's around a 5% chance of causing a pneumothorax. Such an adverse event might qualify as a "medical error" in many classification schemes, but it would certainly not be malpractice: assuming that there was a valid indication for inserting the central line, pneumothorax is a known complication which occurs in a small number of cases and is discussed in informed consent. Second, there should probably be some more meaningful discussion of the shortcomings of the malpractice system (at least in the U.S.) - for example, the focus on individual screwups makes it very hard to effect systematic changes - it promotes a "bad-doctor" model of malpractice instead of a "bad-system" approach. Second, a jury of laymen is not necessarily versed enough to evaluate malpractice claims on their merits - it often comes down to whose expert witnesses are more convincing. Also, claims that have the potential for a large judgement (e.g. injured babies or children) are often prosecuted, while malpractice occurring in an elderly patient or one unlikely to yield a large financial outcome may be less likely to be litigated on the contingency system. I can source all of these viewpoints, and think they would probably be more meaningful "Criticism of malpractice lawsuits" that the somewhat strawman arguments that are currently listed. Just my 2 cents. MastCell 18:03, 19 February 2007 (UTC)

The "Criticism of malpractice lawsuits" section can always be added to with the info you mention but I don't see why any of that section's info should be removed. --Alabamaboy 18:07, 19 February 2007 (UTC)
Sorry, I wasn't necessarily proposing to remove any of that section. I would propose to remove or drastically shorten the section on "statistics on medical errors", as a) medical errors and malpractice are not synonymous, and b) there's a main article on medical error already. MastCell 21:59, 19 February 2007 (UTC)
  • Medical error may not be synonymous with medical malpractice, but that's only because medical malpractice is more broad. Medical error is certainly a significant component of medical malpractice. Let's not skirt the issue by suggesting that we're talking about known complications to commonly performed clinical procedures. We're talking about giving the wrong medication, operating on the wrong organ, accidentally turning off the ventilator, failing to notice that the patient is VF because the alarms are turned off, that sort of thing. Best, MoodyGroove 18:34, 7 March 2007 (UTC)MoodyGroove
I think the point of the JAMA analysis was that there's a lack of clarity on what we're talking about when we use the term "medical error". With the more dramatic estimates, some proportion are not clear-cut mistakes like those you describe, but are known complications of procedures. Besides, purely on Wikipedia grounds, when a main article (medical error) already exists, we should briefly summarize any relevant points and direct the reader to the main article. Right now the section is way too long. MastCell 20:16, 7 March 2007 (UTC)
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