medical malpractice

  • March 12, 2012
    Guest Post

    By Sidney Shapiro, University Distinguished Chair at Wake Forest University School of Law and a member scholar at the Center for Progressive Reform. This commentary is cross-posted at CPRBlog.


    In 1975, Indiana lawmakers joined a small but growing group of state legislatures passing aggressive medical malpractice “reforms.” Indiana’s law capped damages that victims of medical malpractice can recover at $500,000 and eliminated damages for pain-and-suffering altogether, Frank Cornelius, a lobbyist for the Insurance Institute of Indiana, played a role in helping pass this legislation. Twenty years later, Cornelius suffered a tragic series of negligent medical errors that left him wheelchair-bound, dependent on a respirator to breathe, and requiring a morphine drip for continuous physical pain. Facing medical expenses and lost wages of $5 million if he lived to retirement age, Cornelius experienced first-hand the effects of his lobbying for the insurance industry: he was forced to settle his claims for the $500,000 limit. In an op-ed in The New York Times several years later, Mr. Cornelius told his story, expressing regret and noting, sadly, if ironically, that the reforms he brought had failed to control health care spending in Indiana.

    In pursuing their assault on the civil justice system, corporate lobbyists support legislation like that passed in Indiana by arguing the tort system leads to “defensive medicine.” A new Center for Progressive Reform White Paper, The Truth About Torts: Defensive Medicine and the Unsupported Case for Medical Malpractice ‘Reform,’ refutes their claim that “defensive medicine” is a reason for increasing health care costs. My CPR colleague, Tom McGarity and I, along with CPR analysts Nicholas Vidargas and James Goodwin, show how conservative and business interests press their claims about defensive medicine despite the fact that there is no reasonable evidence to support their arguments.

    As health care spending in the United States has grown, corporate lobbyists have pressed their case that physicians react to their perceived litigation risk by practicing “defensive medicine,” making medical decisions to avoid potential litigation, instead of with their patients’ health and safety in mind. Sure, doctors are mindful of the threat of litigation, and may change their behavior accordingly. But, according to recent research, at best only about 2 percent of all health care costs may be attributable to “defensive medicine.” The actual number, however, is likely to be less. Even the analysts who estimate that defensive medicine is responsible for 2 percent of health care costs recognize the evidence supporting that number is weak.