Malpractice Myths
By BOB HERBERT, NY TIMES Columnist, June 21, 2004

E-mail: bobherb@nytimes.com

The power brokers obsessed with tort reform really have the jargon down. They travel the country with overheated stories about runaway juries and jackpot justice. The way they tell it, sinister lawyers and opportunistic plaintiffs are on the hunt, preying on virtuous corporations, hospitals and doctors in search of that big payout from the lawsuit lottery.

President Bush has been complaining about "junk and frivolous" lawsuits for years. So it's interesting to hear the following from the Center for Justice and Democracy, a consumer advocacy group:

"It may be hard to understand why `tort reform' is even on the national agenda at a time when insurance industry profits are booming, tort filings are declining, only 2 percent of injured people sue for compensation, punitive damages are rarely awarded, liability insurance costs for businesses are minuscule, medical malpractice insurance and claims are both less than 1 percent of all health care costs in America, and premium-gouging underwriting practices of the insurance industry have been widely exposed."

In looking at medical malpractice cases, I've been amazed by the cold-blooded attitude so many people have taken toward patients who have been seriously, and sometimes grotesquely, harmed. Referring to a Wisconsin woman who had both of her breasts removed after a laboratory mix-up mistakenly indicated she had cancer, a doctor from South Carolina told a Congressional subcommittee:

"She did not lose her life, and with the plastic surgery she'll have breast reconstruction better than she had before."

Last week I interviewed a woman in Minerva, Ohio, whose abdominal aorta was somehow ruptured while a doctor was performing a tubal ligation. In a discussion of her malpractice suit, the woman, Deborah Rayburn, said the foul-up was not immediately detected. When it became clear that she was in serious trouble, another doctor was called in. "He ended up cutting me open," she said, "and he clamped the aorta."

Ms. Rayburn, who has two children, was unable to work for 18 months. The surgery left her with a scar from chest to groin, and she said she still experiences frequent abdominal pain.

When Ms. Rayburn filed suit, she said, she was made to feel as though she had done something wrong, as if seeking compensation was in some sense an affront to the system.

As a trial date approached, she said, she felt pressured by all the parties involved to agree to a settlement, which she did. She would have preferred to go to trial, she said, not because she was looking for a big payday, but because all the details of her case would then have come out publicly.

And that is one of the essential points that is overlooked by the tort reform zealots: the problem when it comes to malpractice is not the amount of money the insurance companies are making (they're doing fine) or the rates the doctors have to pay, but rather the terrible physical and emotional damage that is done to so many unsuspecting patients who fall into the hands of careless or incompetent medical personnel.

What is needed is a nationwide crackdown on malpractice, not a campaign to roll back the rights of patients who are injured. This is another utterly typical example of the Bush administration going to bat for those who are economically and politically powerful against those who are economically and politically weak.

Despite claims by the insurance industry, there is no evidence that soaring malpractice premiums are the result of sharp increases in the amounts of money paid out for malpractice claims. And, tellingly, industry executives are generally careful not to say that the tort reforms sought by the Bush administration will result in premium reductions.

This is all about greed. What tort reform will lead to, not surprisingly, is an unwarranted burst of additional profits for the insurance industry, which is why the industry is sinking so much money into its unrelenting campaign for "reform."

It would be helpful if the nation's many good doctors would blow the whistle on the insurance industry and its exploitive practices, and on the members of their own august profession who violate that essential maxim, "First, do no harm."