Medical malpractice insurance rates are sky high–$26 billion annually, up 2,000% since 1974, twice the inflation rate of medicine.1 This maddening increase is spawned by the unpredictability of the legal system that is driving "defensive medicine."
Explore This IssueACEP News: Vol 28 – No 12 – December 2009
A recent study estimates the cost of defensive medicine, not including future complications such as cancers associated with rampant CT scanning, to be $1.4 billion per year–in Massachusetts alone. In that study, 84% of physicians interviewed said they engage in defensive medicine because they are afraid of being sued. 2
Other studies estimate the cost to our nation to be between $60 billion and $124 billion per year, with an additional $38 billion in reduced access to health care, which is already a critical problem.3
Practicing defensive medicine is not an unpredictable response on the part of physicians, who should be afraid of being sued. Each year, one in four physicians is sued, with one in two being sued sometime in his or her career.4
The medical-legal system in this country is so unpredictable that one can argue that even where a standard of care is met, defendants are at risk of losing their case.
The flaw is that cases are decided by each jury without any consistency or precedent. And when the case is lost, it can be monumental–52% of awards now exceed $1 million, and the average award is a staggering $4.7 million.5
And this is because a mistake was made–sometimes. It was a mistake that many physicians under the same circumstances could make. That is what spawns this madness and fear.
What is frustrating is that the awards usually far exceed the cost of paying for the injury, because they include nebulous noneconomic damages.
The awards keep escalating because once a precedent is set, a new number is out there and similar awards are no longer considered outrageous. The numbers just keep creeping up higher and higher. There is a concept in law that a victim should be made whole, yet they should not receive windfall profits.
Somehow, everything has gotten out of whack, and we need to correct it for the safety of our patients and the sustainability of our health care system.
Part of what drives this are the contingency fees of up to 40% (after litigation costs, of course) demanded by plaintiff's attorneys. This is considered unethical in countries such as England. One can see why.