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MALPRACTICE LAW -- A DEFECTIVE PRODUCT

by Peter Huber

Forbes, April 16, 1990 at Pg. 154

Copyright 1990 by Peter Huber. Electronic copies of this document may be distributed freely, provided that this notice accompanies all copies.

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"More medical malpractice than lawsuits," barked a recent front-page headline in the New York Times. "Thousands of hospital deaths and tens of thousands of injuries are tied to negligence each year," but "relatively few victims seek recourse in the courts." Says who? Says a major Harvard study of malpractice in New York hospitals, described by the newspaper as "perhaps the most comprehensive ever conducted in the U.S."

That description of the Harvard study reads like an advertisement for America's trial lawyers -- which, in a way, it is. Defenders of the liability system are milking the study for all it's worth. In February, on separate podiums, I debated liability first with Robert Conason, a prominent New York plaintiffs' lawyer, then with Ralph Nader, surely the plaintiff bar's favorite consumer activist. Nader and Conason could hardly suppress their delight over the Harvard report and its attendant publicity.

Can it really be that we advocates of tort reform had it all wrong? That what American really needs is more malpractice litigation, higher insurance premiums and yet another overall rise in doctors' bills? Rest easy. The Harvard study, judging by the advance reports, is quite a different document than one might have been led to believe by the headline in the New York Times.

First revelation: Yes, there is negligence in New York hospitals. Substandard medical care harmed about 1% of hospital patients, according to the Harvard study. Extrapolating from which one may conclude that negligence "contributed to" 7,000 deaths and an additional 29,000 injuries in New York hospitals in 1984. Sometimes the "contribution" will be grave, sometimes it will shorten life by as little as a day, but this is detail. Extrapolate nationwide, as Nader and Conason both enthusiastically did, and you are talking "worse than Vietnam" (Conason) or "worse than all highway accidents" (Nader). For my part, I can easily believe the Harvard numbers. Hospitals, being filled (like my Washington, D.C. neighborhood) with sharp knives and potent drugs, are dangerous places to frequent. I'm stuck with the neighborhood, but I heartily avoid hospitals except when my condition makes it even more dangerous to remain elsewhere.

Second revelation -- the one that has Nader and Conason beaming: The Harvard study found that only 8 out of 306 Harvard-certified victims of negligence went to court. Which is to say, 97% didn't. For Nader and Conason the implication is obvious. The country needs more lawsuits. Just as they always told you, the crisis lies with malpractice itself, not with liability.

Third revelation, the one buried at the end of the Times story, the one not dwelt on by either Nader or Conason until I was rude enough to mention it: Only 8 of the negligence victims sued, but another 39 patients -- who were not victims of any negligence, according to the study -- also sued. In other words, over 80% of the patients who did sue had no basis for doing so.

So there we have it. Nader and his friends will tell you that the lawyers miss 97% of cases involving true negligence -- though it may well be that many patients, wiser than many lawyers, simply choose not to sue. But over 80% of the cases lawyers do file involve no negligence. And this is only the beginning. Additional layers of error are inevitable when claims actually get to a jury.

Of course a 1% rate of negligently caused harm in hospitals is not acceptable; no avoidable harm is ever acceptable. Yes, we do need mechanisms to weed out the incompetent fringe of the medical profession. But most doctors fear, with some justification, that stricter disciplinary measures by hospital boards will be answered with yet another round of litigation, this time for libel, wrongful discharge, or anti-competitive denial of hospital privileges.

A doctor need not be paranoid to fear the lawsuit both coming and going. When college basketball star Hank Gathers died on the court last month, his family vowed to sue various doctors who -- at Gathers' request -- had reduced the dosage of a drug prescribed for his irregular heartbeat. A few days earlier, another player died of a heart attack following a game -- but only after filing a career-disruption suit against the doctor who had advised him that he didn't have a heart for basketball. Hospital review boards face similar legal dilemmas in every disciplinary proceeding they consider.

The big news in the Harvard study is not that some patients get substandard medical care in hospitals. After all, we don't live in Lake Wobegon, where all the children are above average. On the medical side of the ledger, what's striking about the study is that an astonishing 99% of patients apparently received treatment without any negligently caused harm. My cynical mind is inclined to doubt that hospitals are really that good. But even if they're twice as bad as the Harvard study suggests, the doctors are obviously performing vastly better than certain other professions.

The legal profession, for example. Imagine that the manufacturer of a car or contraceptive delivered a product that was defective 80% of the time. Imagine that some diagnostic laboratory ran tests that produced 97% false negatives and 80% false positives. Or imagine that some doctor failed to diagnose 97% of all patients with gangrenous legs, and that when he did reach for a scalpel he applied it to the wrong limb over 80% of the time. Do you think that Nader might demand reform? I would. Lawyer, sue thyself.


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