Pain and Profit: The Politics of Malpractice

Pain and Profit: The Politics of Malpractice

Description

Medical malpractice is a problem that has come of age. In the past few years, it has demanded the urgent attention of the legislatures of every state, the state departments of health and insurance, the United States Congress, and many other private and public agencies. When these agencies and organizations were confronted with a sudden crisis arising from spiraling insurance premiums and insurance unavailability, they naturally looked to available sources of knowledge and information to see what might be done. Often the primary sources of information and ideas were the special-interest groups: the trial lawyers who make their living representing patients or doctors in malpractice cases; organized medicine; and insurance trade associations and companies. Everyone recognizes that information provided by special-interest groups is bound to reflect and protect the interests of the group presenting it. But in this situation there are few alternative sources of information and ideas. Certainly, patients as a group do not have anyone to speak for them, either as people who are at risk of injury through medical treatment, or as the people who ultimately bear the costs of rising malpractice premiums. Often, conscientious and competent doctors are ill-advised and ill-served by the leaders of organized medicine who purport to represent them in the media and the legislatures. Lawyers, most of whom have little or no knowledge of the laws and procedures which bear on medical malpractice, are often represented only by those groups that have staked out a particular economic niche in the medical-liability market. What results is an astounding amount of misinformation for popular and professional consumption. Well-motivated, highly intelligent physicians can hardly speak with their lawyer friends about this issue. Scarcely anyone trusts the insurance companies, though no one has much specific knowledge of how they operate. Professional polarization sets in. There is little worthwhile interchange. This book is written for the many decent and conscientious lawmakers, regulators, and health administrators who must formulate policies in relation to medical malpractice and who need concise, accurate, and documented information and ideas in order to question, evaluate, and challenge the proposals which are inevitably pressed upon them by the special-interest groups. It is written for the many doctors who recognize that they are being unfairly penalized for their colleagues’ derelictions and feel powerless to change this situation. Finally, it is written for the consumers of health services who wish to know what the malpractice “crisis” is really all about, and how it affects them. One of the few disinterested sources of information and ideas about the medical malpractice problem is the 1973 Report of the HEW Secretary’s Commission on Medical Malpractice. This is an excellent collection of data and ideas, but, unfortunately, it has not been disseminated and read as widely as it should be. Our book presents the major information and recommendations of the HEW Report, updates its data where that is possible, and sometimes takes issue with its approaches and conclusions. We hope that this book will make the important information gathered and presented in that 1973 Report more accessible. Much has happened in relation to medical malpractice since 1973, and we analyze those developments. We do not represent any special interest or preconceived point of view. On the other hand, we believe that we do have some qualifications to speak with authority on these issues. Although both of us are lawyers, neither of us has ever represented a patient or a physician in a medical malpractice case. The freedom to acquire specialized knowledge, without the bias and distortion which inevitably result when the acquisition of knowledge is financed to serve the interests of a particular group, is the special privilege and joy of working in an academic setting. New York University Law School has provided us with the intellectual, financial, logistical, and secretarial support which mad this book possible. We both have long-standing interest and involvement in the developing area of the law which attempts to analyze and understand the legal structures that determine the shape of the medical-care delivery system in the United States. Sylvia Law teaches torts, or the law of personal injuries, of which medical malpractice is one branch, health law, and insurance. From 1970 to 1973, she worked with the Health Law Project of the University of Pennsylvania, a group funded by the government and private foundations to develop materials for teaching law students and lawyers the basic legal structures of medical-care delivery systems. Steven Polan became involved in problems of the organization of medical-care delivery while working for Congressman Bob Eckhardt and pursued these interests through his law-school career, both through academic work and as a staff assistant to the Health Committee of the City Council of New York. He now works as a lawyer and health specialist with Carol Bellamy, President of the N.Y. City Council. We hope that this book is in the best tradition of responsible scholarship. Scholarly work demands an openness to the complexities of differing points of view, and documentation and evaluation of sources of knowledge. We have tried to provide them. But we do not believe that scholarly analysis must be confined to subjects which are esoteric, narrow, or banal. We hope that readers will find this book interesting, lively, and a useful resource in dealing with a major social issue of the day. The theme of the book is that the causes of the malpractice crisis are multifaceted, hence solutions must be sought on many different fronts. The roots of the crisis run deep in the basic economic structure and moral assumptions of three major American institutions: medicine, the law, and the insurance industry. Therefore, solutions must of necessity address fundamental problems. Limited reforms are possible, and are suggested. But minor reforms, if they are to be effective even as stopgap measures, must be consonant with more fundamental solutions. As we will show, many of the recent attempted “reforms” are at best useless, and at works will exacerbate existing problems. For these reasons, the malpractice crisis is not likely soon to disappear or be solved. Although the focus of this book is medical malpractice insurance, much of the analysis is also applicable to other fields. After an introduction to general principles of liability, the first major section of the book discusses the ways in which the market for medical services and the organization and regulation of those services contribute to the rising costs of malpractice insurance. The second large section discusses the role of lawyers in the court system. The third and final section examines the insurance industry. In recent years, there have been large increases in the cost of all forms of liability insurance: product-liability insurance; the malpractice insurance of lawyers and other professionals; automobile-liability insurance. The information and analysis presented in the last two thirds of the book may be helpful in understanding the reasons for increases in the costs of liability insurance in areas other than medical malpractice. The major work was done in 1975 and 1976, and includes new developments through November 1977.

Publication Date

1978

Edition

1

Pain and Profit: The Politics of Malpractice

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