Written by attorney Ryan M. Springer

Adding Insult to Injury: More on the Medical Malpractice Myth

"Justice," as Thomas Jefferson said, "is the fundamental law of society." Every election cycle, politicians and insurance lobbyists pepper the newspapers with calls for lawsuit "reform." Invariably, these so-called reforms have one objective: to deprive individuals of the right to obtain justice.

The American legal tradition holds that justice involves a system of consequences that naturally derive from any action or choice. When someone acts unreasonably, or negligently fails to act appropriately under the circumstances, the civil justice system ensures that there will be appropriate consequences. These consequences accomplish the goal of compensating injured parties, as well as deterring wrongful conduct. When these consequences are avoided, innocent parties are forced to bear the burden of the wrongdoer, and there is no incentive to refrain from future wrongful conduct.

In simpler terms, justice requires that we all follow the rules. When we break the rules, we are accountable to those who have been harmed.

Election season is upon us, and so it is no surprise that the corporate interests behind the health care industry is calling for "more tort reform. The reasoning behind this effort is that medical malpractice claims are expected to rise; thus, the industry will suffer an economic consequence.

But this begs an important question: Why minimize the consequences for negligent health care providers instead of minimizing the negligence itself?

Indeed, the real "crisis" isn't medical malpractice lawsuits, it is the increasing incidence of medical malpractice. According to a recent report, "[s]erious medical mistakes...continue to occur despite recently implemented preventive measures." And in another article, Dr. Martin Makaray, M.D. admits that "[c]atastrophic surgical errors are 'a lot more common than the public thinks.'"

Startingly, despite the increase of actual malpractice, patients only bring claims 22 percent of the time. That means that nearly 80 percent of the time, health care providers who have negligently harmed their patients are not held accountable. In other words, eight out of ten times, a bad doctor breaks the rules and gets away with it.

The insurance industry and health care corporations aren't doing enough to minimize negligence, and that is why they are fighting for politicians to eliminate the consequences.

And next time you hear about proposals to "reform" the civil justice system to benefit negligent health care professionals, consider another quote from Thomas Jefferson: "Law is often but the tyrant's will, and always so when it violates the rights of an individual."

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