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Certainly no doctor–presumably including Gingrey–would say victims of “real” malpractice shouldn’t be compensated for their injuries (although they may question whether a jury should have the power to determine the compensation, and they may advocate for limiting the amount of compensation). It’s all those “frivolous” malpractice suits that run up malpractice insurance premiums and consumer health costs.

Right?

What’s interesting is what those who rail against the avalanche of “frivolous” suits claim as their evidence:

● “According to a study by the Harvard School of Public Health, 40 percent of medical malpractice suits filed in the U.S. are ‘without merit.’” — Rep. Lamar Smith (R-Tex.), ranking Republican on the House Judiciary Committee, on Politico.com, Oct. 1, 2009

● “Though Harvard School of Public Health researchers set out to prove in a 2006 study that medical malpractice litigation really isn’t a problem, their integrity compelled them to publish the pesky fact that about 40 percent of malpractice lawsuits filed each year in America are ‘groundless.’” — Darren McKinney, American Tort Reform Association, in a New York Times “Letter to the Editor,” Sept. 27, 2009

● “A recent Harvard study revealed that 40% of malpractice suits are frivolous, leading to 15% of the payouts.” — Dr. Marc Siegel, assistant professor at NYU Langone Medical Center, New York Daily News, Sept. 9, 2009

In citing this study (“Claims, Errors, and Compensation Payments in Medical Malpractice Litigation“) as evidence, it’s clear those who use it to promote the idea of abundant “frivolous” lawsuits didn’t actually read it. Or, if they did, they chose to ignore that authors’ conclusion that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.” At the very least they never saw Harvard’s news release about the survey when it was published, with the headline, “Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits.”

The authors of the study wrote:

The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. (emphasis added)

In other words, plaintiffs often need to file a claim just to get the information necessary to determine whether to proceed. And often once that information is revealed plaintiffs realize they don’t have a legitimate claim…and don’t proceed with the lawsuit. Those cases are included in the 40 percent of claims that were determined to be “without merit.”

But even when a claim is “without merit,” there can still be legitimate suffering by the claimant. According to the Harvard study, “Eighty percent of claims involved injuries that caused significant or major disability (39 percent and 15 percent, respectively) or death (26 percent).” While some of these claims were determined not to involve medical errors and thus could be characterized as “frivolous” under the definition of the word in law (“present no rational argument based upon the evidence or law in support of the claim”), those injuries can hardly be described as “frivolous” the way most people use the word (“of little weight or importance…lacking in seriousness”).

It’s true some plaintiffs in the Harvard study received awards in cases that were characterized as “without merit,” but the study found an even greater number of plaintiffs whose injuries did result from medical error and did not receive compensation. Or, in the words of the study:

Payment of claims not involving errors occurred less frequently than did the converse form of inaccuracy — nonpayment of claims associated with errors.

If the malpractice system were “fixed,” with all plaintiffs who deserved compensation receiving it and no other plaintiffs winning awards, the amount awarded to medical negligence victims would actually be greater than it is today.  Again, quoting from the study:

One in six claims involved errors and received no payment. (emphasis added) The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury. Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.

What, there’s a “vast number of negligent injuries that never surface as claims”? But isn’t this is a litigious society where people look for any excuse to sue? Not quite; the authors of the Harvard study write “research has established that the great majority of patients who sustain a medical injury as a result of negligence do not sue.”

“Frivolous” lawsuits should be among the least of the worries of those looking to improve the medical malpractice system. As William Sage, now the vice provost for health affairs at the University of Texas at Austin School of Law, said when the Harvard study was published, “the major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated.”

Of course, it’s hard to see what “frivolous” lawsuits have to do with limiting damages awarded to the victims of the most serious malpractice by juries that clearly found their case anything but frivolous. And it’s also hard to see why the existence of “frivolous” suits should restrict access to justice. As retired federal judge H. Lee Sarokin writes, “Under what other circumstances would we punish persons who have legitimate claims because others have filed frivolous ones? Do we reduce Medicare payments to honest doctors because others have made fraudulent claims?”

–J.G. Preston

Some of the material used here has appeared in an earlier post.

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Under the federal Amtrak Reform and Accountability Act of 1997, the most Metrolink and Connex Railroad, which had been contracted to operate Metrolink’s trains, can be liable for in damages from that incident is $200 million — which, in fact, the two entities told a judge Wednesday they are willing to pay to settle the outstanding claims.

That comes out to an average of $1.3 million per victim, before legal fees. A paltry sum given the apparent gross negligence of the engineer, and the medical bills and other damages incurred by those who lost family members, or who were injured themselves.

The proposed settlement in the Metrolink crash could lead to a court challenge over the liability cap, which would be good, Better, though, would be for lawmakers to follow up on their previous criticisms and remove the limit. As we’re seeing in the Gulf oil disaster, such limits only benefit the guilty.

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Photo of the 1969 Santa Barbara oil spill from the U.S. Geological Survey.

It took millions of dollars and a lot of years for that mess to get cleaned up, and for the coast to return to somewhat normal conditions. The silver lining: The disaster invigorated the environmental movement and helped lead to the creation of the Environmental Protection Agency.

But the oil wells are still there — the San Francisco Chronicle has mashed up a Google map showing the locations. And where there are oil wells, there’s the risk of a leak. And where there are leaks, there are squabbles about whose responsibility it is to clean it up. We told you a few days ago about the ’80s deal in which the oil companies were able to foist off on consumers a tax to feed a kitty to be tapped for cleanups, in return for limiting the coporations liability to $75 million.

So we’ve been doing the math. The disaster in the Gulf — still mostly offshore — could cost $1 billion to clean up, which would be a massive draw down on the Oil Spill Liability Trust Fund — now at about $1.6 billion. So what happens if one of the wells off Santa Barbara blows up? Will $600 million handle the cleanup? Can the oil industry be forced to pay for the full cost of its own messes?  Can the nation handle two disasters like that at once?

Worry away ….

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In a nutshell, Marcinkowski, a lawyer and former congressional candidate, argues that corporate and medical proponents of tort reform are really just trying to shift responsibility for their business actions to consumers, or to government. It’s a gambit to reduce the cost of doing business by passing along the responsibility for, in essence, cleaning up their messes. It’s like a kid trying to get the whole street to pay for a window he broke.

Jim Marcinkowski

Some of Marcinkowski’s points can be quibbled with. For instance, the argument that lawsuits have driven up medical costs is a canard because “research has shown that over the course of the last decade, both the number of cases filed and the total amount of compensation paid out in medical malpractice have declined.” Well, maybe. But malpractice premiums have increased, which has a direct effect on doctors’ costs of doing business — and the rates they set for providing care.

But for tort-reform advocates to blame that on lawsuits is a classic game of blaming the victim. There undoubtedly have been cases in which people have tried to game the system, making claims for injuries that didn’t happen. But, as Marcinkowski points out, the legal system has a mechanism in place to weed those lawsuits out, and they form a sliver of the overall number of court cases. (And you have to wonder how often businesses file “frivolous” claims to try to gain an advantage. California has a SLAPP law for a reason.) Legal challenges forcing proper, responsible behavior by businesses is a market mechanism that punishes bad behavior and rewards good behavior — the same tools good parents use to raise their children to do right.

In a lot of ways, the tort-reform argument is like saying because some people abuse the social-service system, no one should receive help, no matter how badly he or she needs it. Those are political positions in search of proof, and you can prove just about anything with selective use of anecdotes. Go stand on a beach and look out to sea. That world looks pretty flat doesn’t it?

Marcinkowski’s strongest point is his summation of who bears the responsibility for an injury caused by a product or service:

The person or entity found responsible for the loss in a legal proceeding pays the person suffering the loss. In the case of a business, this may be looked at as the “cost of doing business,” where the cost of the accident is paid by the business, which in turn spreads those costs to its customers by raising the price of its product or service. In such a “mini-free market” system, lawsuits punish an irresponsible party, forcing either higher prices or even market exit, while simultaneously rewarding a more responsible competitor who, without a lawsuit, can keeps its prices low.

Now, what’s so unfair about that?

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