The malpractice epidemic: don't let the industry get away with it.

While AIDS has often been described as the plague of the twentieth century, more Americans die each year from medical malpractice than from AIDS. Breast cancer is the seventh major cause of death, yet more Americans die each year from malpractice than from breast cancer.

In fact, according to extrapolations from the Harvard Medical Practice Study, approximately 100,000 Americans die and hundrecds of thousands more are seriously injured each and every year due to medical malpractice. While the Harvard study is the most comprehensive study produced to date with respect to the incidence of malpractice, Harvard only studied malpractice in hospitals and counted only cases where the negligence was blatant md resulted in serious injury or death. More than a million other Americans who experienced unforeseen injuries during hospitalization were relegated by Harvard to a benignly described category: "adverse incidents."

Malpractice is the third leading cause of preventable death in America. It is human nature to prefer to think "It can't happen to me." However, research and polling show that the American consumer fears being on the wrong end of negligent medical care, particularly in hospitals, and recognizes that the quality of health care in this country has declined dramatically.

People understand that HMOs arc sometimes organizations of "habitual malpractice" instead of "health maintenance," where assembly-line, profit-driven medicine is meted out by doctors who arc financially rewarded for what then, don't do, pursuant to secret (de)-"capitation" agreements.

While personal responsibility, is generally an important 1990s issue, people understand that it has little or no applicability when it comes to the injured medical consumer, espceially if injury occurs during surgery.

Recent headlines tell the tragic story of this epidemic:

* A Tampa, Florida, man had the wrong leg amputated.

* A Boston Globe reporter died of an overdose of chemotherapy.

* An eight-year-old Colorado boy died when his anesthesiologist put him under and then fell asleep.

Rather than rooting out dangerous providers md reducing the incidence of malpractice, the medical industry and its insurers typically respond by trying to rip down the only safety, net that is available to patients injured by physicians' negligence-the tort system.

Consider the case of the happy, healthy two-year-old boy who fell while playing in the woods near his California home. A stick lodged between his upper lip and gums. The injury did not appear serious, but his concerned parents took him to the hospital. Once there, the health care providers repeatedly misdiagnosed the boy's condition, refusing to authorize the expenditure of about $800 for a CT scan that would have confirmed that he was developing a brain abscess. He was left blind and hopelessly brain damaged.

When his parents instituted legal action against the negligent health providers, the civil jury, hearing these facts, awarded $7 million in noneconomic damages for these devastating injuries. But the final cruel twist in this case was yet to come: California's Medical Injury and Compensation Reform Act (MICRA) required the trial judge to slash the award to the arbitrary figure of $250,000 - about $4,000 a year, if this child lives to the age of 60.

Adequate Compensation?

Does anyone really believe that $4,000 a year adequately compensates a person for the pain and suffering of losing sight and mental abilities? Why would a random figure bearing no relationship to a person's actual injury be plucked out of thin air and made law? Why did the California legislature even contemplate, much less enact, a law that lets the medical industry and its insurers get away with this kind of profit-driven, bad medicine? Did these elected officials truly believe that MICRA would lower costs?

MICRA was passed 20 years ago. Not only has it failed to reduce health care costs, but California's per-capita health care expenditures have on average exceeded the national average by 13 percent each year since 1975.

But, as with every debate over so-called legal reform, what is so difficult for our profession to comprehend, much less accept, is that the questions and answers are essentially irrelevant. Neither the debate nor the legislative response has ever been driven by the facts, but rather by the power and influence of the medical industry and its insurers.

Twenty years post-MICRA, the medical industry persists in arguing that gutting our malpractice laws will somehow reduce health care costs, despite the California experience and that of every state where arbitrary caps have been adopted. Complaints by physicians about jury awards in malpractice cases and threats to leave the profession can be traced back to the beginning of our nation.

In fact, medical liability could be wiped out altogether, and it would do nothing to harness injury-related costs. The Harvard study shows that medical injuries in the year studied cost $60 billion due to extended care, lost wages, and so on. Arbitrary caps only increase the incidence of injury because they undermine the deterrent effects of the tort system.

Now the medical industry's focus is the U.S. Congress. There, armed with the same old war cries regarding frivolous litigation, doctors leaving the profession, and the need to reduce costs, the industry seeks to persuade Congress to protect incompetent, profit-obsessed providers at the expense of innocent patients. And the industry is serious.

Consider how the industry recently attempted to use the congressional budget process to preempt our state malpractice laws. The goal was to enact an arbitrary, unfair national cap of $250,000; periodic payments for all past and future damages awarded in excess of $50,000; a maximum five-year statute of limitations from the date of injury, irrespective of the discoverability of the injury; and the elimination of joint and several liability.

These changes were buried in the huge Medicare Preservation Act that recently passed the House of Representatives in the dark of night. The rules of the House permitted a procedure that precluded any opportunity for debate or floor vote.

Historically, the Congressional Budget Office (CBO) has refused to score savings associated with these so-called reforms because malpractice premiums account for less than I percent of total health care spending. But, lo and behold, this year the CBO suddenly projected $200 million in savings tied to the cap over a seven-year period on the theory that insurance premiums would be reduced and the medical industry would voluntarily. pass these savings on to consumers. Sure they will! Doctors are licensed and disciplined under state law, and their insurers and the rates charged are regulated pursuant to state law.

Fortunately, the Senate, in accordance with its rules, has so far appropriately refused to consider this substantive legislation in the context of the budget process on the grounds that it would not have revenue impact. However, the medical industry and its insurers won't give up. If they can't do it in the budget, they have more than enough allies in the 104th Congress to continue to push for an independent bill that incorporates all these special-interest protections.

Symbol

"Tort reform" is nothing more than a symbol to the medical profession. Now, more than ever, it is a desperately sought reaffirmation of doctors' importance to this society in an age when they arc no longer in charge and their professional image and income are on the decline as our health care delivery system undergoes rapid change. Many doctors across this country are suffering, but not because of the tort system.

The problem with medical malpractice has always been medical malpractice. But rather than police its own, the industry and its insurers now want federal protection against health care providers' wrongdoing. As medical consumers, heads of small businesses, and guardians of the people's rights, we must give this issue our collective vigilance - whatever our respective areas of practice.