Thursday, September 10, 2009
A Brief Word About Medical Malpractice
This came up in last night's speech, and I actually know something about it -- it's how I got started as a blogger! -- so let me say a few words on the subject.
The evidence that defensive medicine truly exists is slim to none. But if it makes doctors feel better, it might be worth doing. Compared to other industrialized nations, the US spends more on compensation for medical errors. However, we spend less on other forms of social insurance, particularly workers' compensation and disability insurance. In addition, the tort system in the US serves the dual function of compensating the victim and punishing negligent doctors. This leads to some victims of medical error going uncompensated, while others end up with outsized awards based on their future earnings potential, the quality of their lawyers, the revenue of the hospital where they were injured, and so on.
As is frequently the case, the best social-democratic alternative can be found in Scandinavia. Med-mal is one of the places where Denmark has yet to pass Sweden in effectiveness. In Sweden, there's a form you can pick up at the hospital and fill out to submit a claim of medical error (I won't say "malpractice"; some times errors just happen). Usually people hire a lawyer to help them fill it out, but this is a much smaller-scale exercise than filing a lawsuit; no discovery, no pre-trial motions, no nothing. The claim is then sent to a review board, which awards damages to 40% of filers. That might sound low (after all, many claims in the US are settled out of court), but Sweden has three times as many malpractice filers; overall, more Swedes end up with awards than Americans do. Patients who disagree with can appeal at no cost, and frequently handle the entire appeal by mail. Overall, .16% of Sweden's health care spending is devoted to insuring and processing malpractice claims, compared to 3% in the United States.
Now, we have this pesky Seventh Amendment which gives people the right to a jury trial in cases where the value exceeds $20 (that's nominal dollars; apparently the Founders hadn't discovered inflation), so any American system would have to get people to waive certain rights. But it would be better for most malpractice victims and better for the country's health care system if we had a system similar to Sweden's -- more total claims, each with lower individual awards, and a more robust system of wage and disability insurance.
Posted by Nick Beaudrot at 9/10/2009 09:20:00 AM
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The seventh amendment is not incorporated against the states, so state courts do not have to allow jury trials in civil matters.
... but ... everything else has been incorporated against the states, right?
My girlfriend argues that my theory doesn't hold; that the state govt can make, say the workers compensation the exclusive remedy for on-the-job injuries, but I'm still convinced it's subject to constitutional challenge.
Overall, .16% of Sweden's health care spending is devoted to insuring and processing malpractice claims, compared to 3% in the United States.
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