The story of medical malpractice litigation in the United States is like the famous passage in Macbeth. “It is a tale told by an idiot, full of sound and fury, signifying nothing.”
Medical malpractice lawsuits are nothing new. They have been filed and tried in America’s courts since 1784. Between 1835 and 1865, there was a rash of them. One might even call it a crisis.
Medical liability insurance is, also, nothing new and was available in the United States since 1899. Initially, it was a prepaid legal defense fund. Then, in 1909, MedPro initiated the modern indemnity plan.
The present “malpractice frenzy” finds its origins in 1960 in Cook County, Illinois. Lawyers there discovered how to make money from medical malpractice. Medical errors cause lawsuits. Medical errors were infrequent. Random mal-occurrences accompany medical interventions even under the best of circumstances. They were random errors-of-nature that happen more frequently than medical errors committed by doctors. Best of all, an error-of-nature was indistinguishable from a medical error and this gave it value.
Real physician voices, twice a week
Free, and one click to unsubscribe.
Hence, lawyers made Cook County the epicenter of massive payouts. It just took the presumption of negligence. “If you ever went to a doctor and things went south, the doctor made a mistake and you have been injured and deserved to be compensated. Sue the doctor!” Is this much different from what we see on TV today? “If you have a phone, you have a lawyer, and, if we don’t win, you don’t pay.”
As the mass hysteria spread nationwide, the American Medical Association (AMA), also headquartered in Cook County, did what it is best known for doing: nothing. As it spread, this frenzy was permitted. After all, all doctors have complications. That was the purpose of liability insurance; was it not? Just about all doctors have malpractice insurance.
Some states established patient compensation funds. These funds were financed by malpractice carriers in the state. Malpractice carriers contributed a percentage of a doctor’s annual liability premium. Hence, premiums increased especially in high-risk specialties.
It comes as no surprise that Illinois, where Cook County is located, never established a patient compensation fund because of the trial lawyers’ lobby in the state. Trial lawyers were so powerful that malpractice insurance carriers chose to abandon Illinois, rather than to deal with the emerging crisis. This led to the development of physician-owned mutual insurance companies, like the Illinois State Medical Inter-insurance Exchange (ISMIE). It provided coverage, but, as a result, vital medical services are concentrated into large, self-insured hospital systems mostly in Cook County. This served to the detriment of rural communities.
In patient compensation funds, doctors were required by the state to maintain liability limits in an amount established by the state. To access the fund, as intended by the trial lawyers’ lobby, lawyers claimed damages that exceeded limits of liability. Not only do premiums increase, but these funds go bankrupt. These funds were intended to cap recoverable damages. The trial lawyers’ lobby in Illinois was fervently “anti-cap” and that is why Illinois never had a patient compensation fund.
Then came the joint underwriting associations. The joint underwriting association indemnified the first dollars before malpractice insurance clicked in. Physicians paid surcharges to finance joint underwriting associations. At first, premiums were controlled; however, the surcharges exceeded the savings. The trial lawyers’ lobby in Illinois liked this concept because it did not cap damages. Hence, Illinois was allowed to establish a joint underwriting association.
Still, lawyers sought the highest damages possible and regarded medical malpractice insurance the primary target and the underwriting association as the secondary target. Today, eight states still have joint underwriting associations.
According to the federal government, even today, Illinois is ranked among the most favorable states for medical malpractice attorneys. It has the highest payouts and there are no caps. Also, Illinois ranks as one of the most hostile states in the nation for doctors regarding medical malpractice. It has a long, turbulent legal history with tort reforms, and attempts to pass tort reforms in 1975, 1995, and 2005 failed because of the power of the trial lawyers’ lobby.
Even the AMA regards Illinois as having a “broken medical liability system” and lists it as a “crisis state.” Nevertheless, rather than discouraging physicians, the AMA actively supports Illinois.
How can the AMA be so dismissive of Illinois? Its support exemplifies that Illinois, if not technically overrepresented in the AMA, still exerts a disproportionate influence over it. This is because of certain idiosyncrasies about the AMA as an organization, chief among which is that the AMA is headquartered in Chicago. This gives Illinois a decisive advantage as a voting block in the AMA’s annual convention, not to mention other matters of interest decided by the AMA including medical malpractice.
Since the 1960s, because nothing works to reduce this malpractice crisis, there are the destabilization of health care, the unmitigated failure of all efforts to control health care costs, and the loss of the patient/doctor relationship. The system will collapse and will be replaced by socialized medicine. This is the Cloward-Piven strategy.
To ensure their survival, doctors do whatever is necessary to maintain medical malpractice insurance coverage and practice $45 billion of defensive medicine. This destabilizes health care.
Medical malpractice insurance companies ensure their survival by simply increasing premiums. This destabilizes health care.
The AMA and its affiliate medical societies ensure their survival by doing nothing, or, at least, pretending to do something. For instance, by supporting tort reforms, the AMA seeks the favor of legislators at the federal and state levels so that it maintains its position as the strongest voice of America’s medical profession. It is permitted this title by those who it patronizes. This destabilizes health care.
In 2004, 34 percent of physicians were sued for medical malpractice at least once during their career. In 2017, this increased to 55 percent of physicians. In 2066, it will be 100 percent.
Howard Smith is an obstetrics-gynecology physician.
