A popular complaint among physicians is that America's medical malpractice system is this crushing force, arbitrarily assigning jackpot awards to people whose only harm was not getting better after they saw a doctor. With average awards running so high, malpractice insurance premiums have to be high as well. The novelty of hearing about a physician flaunt his lack of insurance, making him an unprofitable target for malpractice litigation, usually stirs up debate.
Both sides of the issue have merit, but, as usual, the disagreements are more a matter of perspective than something that you can act upon.
As a patient, it's completely unreasonable to expect that your physician will be perfect. There are people that walk into hospitals and never walk out. The physician could have done everything conceivable, anticipated every possible complication, and done everything perfectly, and the patient still might have died. These are poor outcomes that have nothing to do with the abilities of the physician. People die. We need to move on.
Further, doctors make errors. They're human beings like the rest of us. There will be patients that do not wake up from their operations because the surgeon goofed.
From the doctor's perspective, it's unreasonable to expect that you won't make an error, or that you should be exempt from having to pay for the consequences of those errors. As a driver, I know there's a chance I may make a mistake. I've done it before, and caused a (small) accident. Who paid to make everything right? Me, of course, because it was my error. As an employee of a company, if I'm given a large amount of responsibility, and I make a mistake and cause a tremendous loss for the business, the business pays for that, either directly or indirectly. I almost certainly pay personally here too, either by losing my job, or at least my standing. But either way, the harm that my mistake caused was borne either by me, or by the person I was working for.
The problem is that medicine deals with large risks. Your own life is the ultimate risk. A single error in a doctor's career could cause the loss of a person's life. Is the doctor's life more valuable than the patient's? "An eye for an eye" would suggest that this mistake be held up against the very life of the doctor that made it.
Of course, you can't do that. The physician is just doing his or her job, and just because it's a high-risk job doesn't mean the physician should have to pay for that risk. That's why we have a malpractice system that uses insurance companies. This system works on the assumption that doctors usually don't cause errors, but when they do, the costs are usually staggering. Premiums should necessarily be high, and those costs should be passed on to the patients. Doctors that make more mistakes pay high premiums, and they're forced out of the business because they can't afford it.
So, in theory, the system isn't fundamentally broken, in my opinion. However, there are still two problems that need to be addressed:
The first problem is that a jury of your peers hasn't a fucking clue what constitutes malpractice, as opposed to just a bad outcome. Consequently, the skills of the lawyer combined with the believability of each side's "expert witnesses" decide cases. I'm an "objectivist", so any system where the skills of the people arguing decide fairness is, in my eyes, an unfair system. I still think a jury system could work here, but letting both sides hire witnesses still seems wrong to me. There is an inherent conflict of interest when someone pays you to take the stand to testify in their favor.
Some solutions to this problem include specialized "health courts", or an impartial panel of experts that review and certify malpractice cases, rather than relying on the abilities of a lawyer to convince or confuse a possibly uneducated jury.
The second problem is that the justice system is really there to fix injustices. It disgusts me that there are literally industries that operate around litigation. Litigation should be a last resort, not a first. What we're really talking about here is the inevitable error that a physician makes. What's so hard about (a) agreeing that an error was made, and (b) identifying fair compensation for that error?
Answer: the promise of jackpots. The introduction of non-economic damages in civil suits was a horrible mistake, in my opinion. Anyone can claim "pain and suffering" damages in the millions, and if their story is sad enough, juries will agree. It's impossible to quantify these things. It's just a subjective judgment call, which makes it inappropriate for a court to force people to agree to. In my opinion, a government and its justice system ought to be serving the public interest, in everything it does. By permitting people to cry and whine to a jury in order to be awarded millions of dollars of "compensation", we are encouraging the population to be a bunch of fucking whiny cry-babies. Get a spine! Grow up!
But it's not just non-economic jackpots that I take issue with. It's actually my understanding that, generally speaking, awards tend to be consistent with the injury suffered. The problem is that a potential plaintiffs (and their lawyers) have an economic incentive to call a bad outcome a case of malpractice. All they have to do is convince or confuse a jury into believing them over the doctor. (Remember that civil cases do not require them to believe either side "beyond a reasonable doubt.") So if the costs of bringing the suit aren't that significant compared to the potential rewards, lawyers will gladly take the case, because even if they lose most of them, the few that pay off will pay off big. So yes, the awards might even be adequate compensation for the plaintiff's poor outcome, but was it really fair to make the doctor (or his insurance company) pay for it in the first place?
So instead of a physician's mistakes being considered an unfortunate cost of practicing medicine, handled expediently and fairly for both sides, it becomes an ugly, disgusting example of everything that's wrong with America's justice system. Physicians are vilified, called "baby killers", with the most hurtful, shameful language you can imagine appearing in an official court document. To the lawyer, it's just another day at the office. To the doctor, it's devastating and heart-wrenching. This isn't a simple cost of doing the job, it's a personal attack. It's evil.
Solutions to this problem? Surprisingly, the same as the first: stop letting medical malpractice trials become a circus of confusion of claims that are dubious to begin with. People that have legitimate claims should be compensated. Those that don't have legitimate claims should have a harder time. With less willingness for lawyers to pursue dubious claims, it should be possible to better predict how you will fare at trial, which allows both sides to see cases a little more objectively, and to have a better idea up front what sort of compensation is appropriate. These cases can then be fairly settled out of court and everyone can move on with their lives. Better for injured patients, better for doctors, not so great for lawyers.
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