San Francisco Injury Attorney Blog

I was enjoying President Obama's superb speechmaking ability during the State of the Union address, until he endorsed medical malpractice reform, to "reign in frivolous lawsuits." I was crestfallen to hear Obama endorse what he must know is a fraud. Why do I say this part of the Republican health care reform proposal is a fraud? Two reasons: a strong consensus of experts agree that the costs of handling and paying medical malpractice claims amounts to less than 1% of our health care costs, and all the proposed "reforms" involve simply capping what a victim can collect, not sifting frivolous claims out of the system. Ironically, these recovery caps affect only the meritorious, non-frivolous cases, where a claimant has been deemed entitled to compensation. In the past, California required a "certificate of merit" from a doctor before a malpractice claim could be filed in court. This type of measure might limit meritless claims.

Numerous recent studies have shown that there is an alarming number of medical errors in the U.S., many of which cause death or serious injuries. An alternative way to cut the costs of payments to medical malpractice victims is to take measures designed to reduce medical errors. It would be of much greater benefit to us all to cut the costs by reducing the malpractice itself. Of course, it is much easier to simply cap the health care providers' responsibility for their mistakes than it is to increase monitoring and training to address the root cause of the problem. Whether or not we take any measures to reduce malpractice, further limits on compensation for victims will not have any meaningful impact on the costs of health care, and it will serve primarily as a cost-saving tool for insurance companies.

Some point out that making physicians liable for damage claims when they commit malpractice causes them to practice "defensive medicine," ordering unnecessary tests, etc., in order to forfend against any claims. No one, though, is proposing that we eliminate altogether our system for compensating medical malpractice victims. Limits on liability, then, will not prevent doctors from being concerned about liability, and taking steps to insulate themselves against future claims.

Our doctors' concern about liability can actually benefit us as patients: who wants to see a doctor who is totally immune from any responsibility for his or her mistakes?

I am sad to see Obama coming down from the pedestal where I had placed him. I know that politicians often have to make compromises, as Obama did on the Bush tax cuts for the wealthy, but he continues to speak out against those cuts, even in the recent State of the Union speech. I can only imagine that Obama knows from polling that many of us have been led to believe that medical malpractice tort reform would be an effective way to address the cost problem, and that he is tapping into that sentiment, even though he knows it is based upon a myth.