Medical Malpractice Litigation Really Isn't All That Special

One of the common threads you see in the criticism of medical malpractice litigation from the medical community is that medicine is special - it's so complex that it's just not reasonable to trust malpractice litigation to a jury of laypersons. We are told that we need "health courts", an undefined concept that generally appears to translate into "courts where people like me get to decide what is or is not malpractice." And all of that is fine, insofar as it goes, except...

There's actually nothing special about malpractice litigation. Many incredibly complex cases are resolved within the jury system. An argument could be made that all technologically complex cases should be removed from juries, but that's really an argument for the abolition of the jury system itself - and disregards a long and involved history of how we came to have juries in the first place, why we protect the right to trial by jury in the Constitution, and why we have perpetuated that system into the modern era. The fact is, not all malpractice cases are complex. You're supposed to remove the patient's diseased, left kidney, and you instead remove the patient's healthy, right kidney? That's not difficult to understand. And sometimes what one might assume to be simple cases, let's say a car accident, can end up involving experts in engineering, accident reconstruction, economic damages.... Let's not forget, also, that juries are called upon to decide incredibly complex cases involving business disputes, environmental contamination, intellectual property, antitrust.... There's simply nothing about the complexity of medical malpractice litigation that meaningfully distinguishes it from other types of litigation.

Dr. Robert Centor argues,

We need special health courts. The jury process induces lawyers to couch their words, use sophistry, and work hard to present part of the story. This is clearly true for both the defendant and the plaintiff legal teams. If we had special health courts, then we could have a nuanced discussion of all the details of patient care. A jury trial leads lawyers to focus on details and try to “make mountains out of mole hills”.

I've tried to engage Dr. Centor in the distant past about what he means by a "special health court", to no avail. Pretty clearly, his concept of the "health court" would be a non-adversarial court system, and would not involve a jury. Perhaps he's thinking of something akin to a coroner's inquest (of the type that does not use a jury), or some sort of inquisitorial tribunal system. One can only guess.

It's not at all clear, though, why he believes such a system could be created and yet be completely non-adversarial. It's difficult to imagine a doctor, accused of malpractice, beaming with delight at the thought of having his case tried in a "health court" as opposed to a regular trial court, or being content with lawyers who argue, "We're not actually representing you - our duty is to help the court find the truth, even if that means you're found to have been culpably negligent." All you have to do is look at the effort that doctors and the insurance industry have invested in keeping confidential the results of peer review in malpractice cases to recognize that the medical profession is not interested in placing all of the facts on the table.

We presently have trials that don't involve juries - bench trials - and although the conduct of the trial can be affected by the absence of a jury, even in medical malpractice cases the litigation remains adversarial. There are pro's and con's to the adversarial system, certainly, but on the whole parties like to be represented by advocates who zealously represent their interests.

Dr. Centor, himself, highlights a significant flaw with his apparent notion of a "health court", in that no "health court judge" or tribunal will be expert in every area of medicine:

Some physicians will testify in cases about which they really understand little. Reading the depositions of some other physicians saddened me.

I will continue my personal philosophy of only accepting to testify in malpractice cases for which I believe I have clear expertise. Over the years I have accepted less than 10% of offered cases. I had testified once previously approximately 25 years ago, and had been deposed once in another case. But generally, I avoid malpractice cases because I do not consider myself qualified.

If you have judges, even specially trained judges, presiding over a trial where the proposed medical experts are testifying outside of their area of expertise, how is that an improvement over the current system? The judges can't be assumed to have a better understanding of medicine than the experts testifying in court, and Dr. Centor argues that many of those experts aren't qualified. If litigants seek out Dr. Centor due to his credentials and expertise, yet he deems himself qualified to serve as an expert in only 10% of those cases, by Dr. Centor's measure what are the odds that a randomly selected health court judge is going to be qualified to hear an assigned case?

For all of the kvetching, every comprehensive effort to review the outcome of medical malpractice cases suggests the same thing: Malpractice lawyers are very selective about the cases they take, when they take cases that turn out to be weak it's almost always because they lack the information necessary to fully assess the case and cannot get that information without filing a lawsuit, when there's ambiguity in a case juries tend to side with doctors, and to the extent that error occurs it usually favors the doctors. As is quite typical, even when arguing that the case shows a "need" for a health court, Dr. Centor argues that the jury came to the correct verdict. His concession reduces his argument to this: "The system worked. so let's replace it with something I can't define that I think will be more fair."

I'm not going to dispute this:

he psychological impact of these charges on the defendants was palpable. These hard working, conscientious defendants had years of having these charges hanging over their heads. They did nothing wrong. That really does not matter in jury trial.

The distinction between professional negligence litigation and standard negligence litigation is that somebody is pointing their finger at you and claiming, "You weren't competent in this case, and your incompetence caused somebody to suffer an injury." One of my law school professors liked to edify his students by explaining legal practice in very blunt terms. One of his declarations was, "You will all commit malpractice." The fact is, everybody makes mistakes - the big question being, how you respond when you make a mistake. Most mistakes can be fixed and, if you detect your error or omission quickly enough, harm can be minimized or avoided.

When you look at why patients look for malpractice lawyers or bring malpractice lawsuits, you find that bedside manner is a huge factor. When something went wrong, was the doctor helpful? If the doctor made a mistake, did he apologize? Rick Boothman, chief risk officer for the University of Michigan Health System, has advocated for years that doctors and hospitals change their approach to litigation, and has documented that an approach of disclosure, apology and cooperation reduces the number and cost of malpractice claims. No need to reinvent the system. It's an approach more institutions and doctors should take.

A comment on Dr. Centor's blog suggests, as an argument for "health courts", "Attorneys will drag out a weak case in hopes of a settlement getting something instead of nothing." The commenter confuses the exception with the rule. The principal reason that malpractice litigation drags on as long as it does is not due to plaintiff's lawyers. It's due to the successful lobbying by the medical malpractice insurance industry for measures that increase the cost of litigation for a plaintiff and prolong the litigation process. By imposing up-front costs and delays, small but meritorious malpractice cases are squeezed out of the system. The longer a case drags on, the more likely it is that a seriously injured malpractice victim will settle for less than the case is worth. As Mr. Boothman indicates, plaintiff's lawyers are happy to work collaboratively with a doctor or hospital to arrive at an early settlement. No plaintiff's attorney wants to invest $50,000 to $100,000 or more in taking a case to the point of trial (and yes, malpractice litigation is extremely expensive) if they can settle it quickly. The exceptional cases involve the late disclosure by the defendant of information that undermines the plaintiff's case, where the plaintiff's lawyer then angles for a modest settlement to try to avoid taking a loss on the case, or where the plaintiff's lawyer isn't competent to litigate malpractice cases in the first place.

A last point on "health courts": Let's assume an efficient health court system that accurately distinguishes actual malpractice cases from maloccurrence that results from non-culpable negligence, outside factors or bad luck. I very much doubt that health insurance companies would support the implementation of such a health court system. Why? Because right now, only a very small percentage of valid medical malpractice cases are prosecuted. The estimate is usually around 12%. The rest of the cases involve patients whose cases are too small to litigate under the present system, patients who lack the capacity or understanding to pursue a malpractice cases, patients who dread the thought of litigation and, perhaps most importantly, patients who like their doctors. If you create a sufficiently painless system, with efficient, low-cost resolution of malpractice claims, inspiring a significant percentage of that majority to pursue their valid claims, the amount paid out to settle claims could increase substantially. Even if Dr. Centor believed that such a system would be better than the status quo, the malpractice insurance industry would fight its implementation, tooth and nail.