Thursday, February 20, 2003

Rich Hailey at Shots Across the Bow took a look at the National Practitioner Data Bank information, and concludes as follows:
This information presents a good argument for capping awards, rather than the other way around, as claimed by Public Citizen's fact sheet. First, the number of claims is growing; second the amount awarded per claim is growing at three times the rate of inflation; third, there is a strong correlation between the increase in malpractice claims and the increase in health insurance premiums; and fourth, the data shows that the awards are heavily skewed to the high end, indicating an inequitable distribution of award monies. By capping malpractice awards at a reasonable level, this inequity can be addressed.

First, maybe the number of claims is growing because the level of care is decreasing, i.e., more medical negligence, leading to more claims. Second, maybe I'm dense, but what does the amount per claim have to do with the rate of inflation? The amount of any particular claim has to do with the type of negligence and the severity of damages as a result thereof. I'm not convinced that statistic has much value. Third, caps don't affect payments for medical expenses in malpractice cases. They only cover pain and suffering. On the other hand, if Big Insurance is successful in capping pain and suffering, there's no reason it shouldn't try to cap other elements of damages, like medical expenses and loss of income/earning capacity. Fourth, that awards are skewed toward the high end means only that the cases that are usually pursued more often than not have high value, which dovetails with what I have been saying. Most lawyers cannot afford to take malpractice cases that have low or marginal value.

Example: back in 1989, my brother had a ruptured appendix, as a result of a failure to diagnose on the part of the doctor he had seen. The doctor did no tests, and was clearly negligent. Brother was in the hospital 10 days, had an NG tube snaked up his nose and down his throat for most of that time, lost 30 pounds [OK, he needed to do that], had to go home with an open incision that had to have medicated gauzed removed and re-inserted within the incision several times a day [quite painful]. Eventually, he made a full recovery. No lawyer would take the case. Why? Even though he had about $10,000 in meds as a result of the failure to diagnose, and had much pain and suffering for a month or so, the max value of a case like that is about $50,000. Given that the defendant would have forced us to spend $10-30,000 in expenses, we very well may have lost money on the case. THAT'S why the cases skew high; there just aren't many low ones, because they end up not being litigated or tried.

This thoughtful post and analysis argues in favor of not paying too much attention to statistics , which still are very much subject to being misconstrued.

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