Malpractice Problem Not Solved With Obvious Answers

A series of new studies shows that the medical malpractice crisis around the country is real. But the solutions sought by doctors may not solve the problem.

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This is ALL THINGS CONSIDERED from NPR News. I'm Michele Norris.

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And I'm Melissa Block.

There's been a lot of debate recently about medical malpractice insurance for doctors. Is there a crisis, and would capping damage awards solve it? Well, a series of studies out today finds that the crisis is, indeed, real. And as NPR's Julie Rovner reports, the studies also suggest that the solutions are not as simple as many doctors think.

JULIE ROVNER reporting:

Groups representing doctors and lawyers have released innumerable studies over the past couple of years, variously blaming each other and the insurance industry for skyrocketing malpractice insurance premiums. Today's studies, two each in the peer-review Journal of the American Medical Association and the journal Health Affairs, try to bring some objectivity to the debate. Not surprisingly, the American Medical Association was quick to say the studies buttress its case for federal caps on damages for pain and suffering set at $250,000. Donald Palmisano is the AMA's immediate past president.

Mr. DONALD PALMISANO (Former President, American Medical Association): We have peer-review studies that are showing what we have said for a long time. Number one, the medical liability system is broken. Caps--we know that caps on non-economic damages, the $250,000-type caps, fixed caps, do work.

ROVNER: But the researchers who did the studies say that's a bit of a stretch. Two of the studies did find that states that have passed pain and suffering damage award caps do have more doctors. William Encinosa, an economist with the federal Agency for Health Care Research and Quality, looked at the states that passed caps during the malpractice crisis of the 1980s.

Mr. WILLIAM ENCINOSA (Economist, Agency for Health Care Research and Quality): We essentially find that there's more physicians per person in states that have capped malpractice awards.

ROVNER: But one of the studies actually contradicts the AMA's view of the problem. It looked at claims that rising malpractice payments are the main reason for the current crisis. Dartmouth economist Amitabh Chandra is that study's lead author. He said that using government statistics from the National Practitioner Databank, they found that huge jury awards are not fueling the problem.

Mr. AMITABH CHANDRA (Economist, Dartmouth): The growth in the extreme awards have actually been a lot less than the growth in the average awards. It's not that there's a small group of runaway awards whose magnitude has increased disproportionately over time.

ROVNER: That would mean that caps, which control only those large payouts, wouldn't really help. In fact, he says while malpractice payments are rising, they're not the fuel that's feeding health-care inflation.

Mr. CHANDRA: As a proportion of all health-care expenditures, how much we're spending on medical malpractice payments has certainly remained the same.

ROVNER: The AMA, which has long challenged the accuracy of the information in the federal databank, says the study is flawed. But William Sage, a physician and lawyer who teaches at Columbia Law School, says the results are consistent with a study he worked on a few months ago. It found malpractice premiums in Texas spiked at a time legal payments were stable.

Dr. WILLIAM SAGE (Columbia Law School): What we're left is the recognition that the problems of the malpractice system are not problems resulting from spikes in lawsuit activity or an out-of-control legal system.

ROVNER: That doesn't mean, however, that doctors aren't acting as if they're about to be sued. The final study surveyed doctors in Pennsylvania, a state where malpractice premiums have risen dramatically. Co-author Sage said the doctors admitted to a long list of defensive medical procedures.

Dr. SAGE: Biopsies that didn't need to be done; very expensive diagnostic tests that were going to give rise to, you know, a host of abnormal findings that probably meant nothing clinically but would need to be followed up.

ROVNER: Even more insidious, says Sage, is the time doctors said they spent sizing up new patients to decide if they were likely to sue. Among those most suspicious were patients who did what patient safety experts recommend: act assertively.

Dr. SAGE: One thing we learned from our survey is that in a very stressed malpractice environment, with the bad malpractice system we have, assertive patients do not necessarily get good medical care. Sometimes assertive patients are simply given the thing they've asked for, whether it's something that's good for them or not. And in other situations doctors react to assertiveness by declining to care for the patient.

ROVNER: Congress does need to act, says Sage, but not just to impose caps. Rather, it needs to heed recommendations made a few years ago to fund a series of state demonstrations that would try different ways to both prevent medical errors and settle damage claims more amicably. Julie Rovner, NPR News, Washington.

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