The U.S. Medical Liability System: A Reflection Paper
The medical liability system of the United States is said to be in a state of crisis. Doctors are getting deterrence from proceeding with important medical procedures as well as practicing in some states due to threats of lawsuits against them. In relation to the determent of the doctors, the American medical liability system is said to have two principal objectives which are as follows: to compensate patients who are victims of medical malpractice and to deter the medical practitioners from doing their job negligently. The compensatory function of this medical liability systems aims to repay for the losses due to the tortious acts of the medical provider and to restore the patients to their conditions before getting injured. For the deterrence function, the liability system gives incentives to the individual in order to take precautionary measures (Shepherd, 2014).
The crisis that the medical liability system faces only proves that problems exist within it. The article by Shepherd (2014) pointed out some of these problems such as the poor performance of the system on compensation and deterrence functions – the two main objectives. In the United States, the medical errors or negligence are the major causes of accidental death, as reported by the National Academy of Science’s Institute of Medicine. This problem is frequently over-looked since the victims or complainants do not receive the proper compensation. Shepherd also pointed out in her study that 1% of the hospital patients are medical malpractice victims, and only 2% of these victims can file complaints. Most of the victims of medical negligence are unable to file claims at all. Moreover, those who can file complaints does not receive the appropriate compensation since they cannot reimburse the expenses from the medical malpractice. Many victims of medical malpractice are considered silent victims. They are victims of negligence who are uncompensated for their injuries. These silent victims tend to keep mum about their cases since they have difficulty in getting court access (Kessler, n.d.).
Plaintiffs of medical malpractice have difficulty of getting access-to-justice. The victims were not able to file complaints because they cannot find lawyers who are willing to help their cases. The litigation expenses which include the filing of legal complain and looking for a lawyer who can represent them are too expensive for their own good and even reduces the compensation they might receive. With the points presented by Shepherd (2014), I believe that many malpractice patients indeed suffer from difficulty of court access. The victims are unable to get justice from what they have gone through due to the malpractice of their medical provider. More importantly, even the compensation that they should have been guaranteed based on the American medical liability system is not attainable since they need legal action to achieve it. The procedures included in the American medical liability system hinders the legitimate victims to receive compensation instead of helping them to cope with their experiences. Justice and human satisfaction are not served if court access will continuously be hindered or if court access will be the only basis to get legal compensation (Kessler, n.d.). With the unwillingness of fee dependent lawyers, it makes legal compensation impossible to achieve. Moreover, this contingent fee lawyers are increasing in number that makes it hard for the victims of malpractice to rely on them. In defense for the side of the lawyers who cannot take these legal cases, they cannot just take the case since their expected recoveries will not compensate the litigation expenses. I think that these set-up is common in the American medical liability system which makes it really hard for the victims to fight for the rights without any legal representation.
Compensation System for Medical Malpractice Victims
In 2014, Shepherd studied the victim compensation system in the United States. The objective of the study is to evaluate the access to Civil Justice System of the victims of medical malpractice. The study also opts to analyze the current condition of the victim compensation system. In this study, attorneys were surveyed about handling the cases of medical malpractice. They found out that most of the attorneys reject the legitimate cases of medical malpractice due to the low value of the litigation forces. According to their data, almost 75% of the lawyers have rejected 90% of the cases due to insufficient damages to the victims and very high litigation cost. The medical malpractice cases become a case mostly neglected due to very high difference between the advantage and a disadvantage (Kessler, n.d.).
Also from the study, they have found out that 50% of the lawyers will not accept the case if the cost is below $250,000 even if the case will have high chances of winning. In cases where winning is not certain, most of the attorneys require as much as $500,000 for the expected damage before accepting the medical malpractice case. In most cases, the victims of medical malpractice have difficulties in finding a representative or a lawyer. The cases should have a sufficient expected damage before they find a legal representation. In this study, it clearly shows that there is a problem with the access to legal justice system for the medical malpractice cases (Shepherd, 2014).
As a support to the mentioned access-to-justice problems, 95% of the malpractice victims, based on private-industry data, have encountered extreme difficulty in getting legal representation. This situation is true unless the damages are larger as compared to the typical damages for their injuries. Indeed, the problem of getting access-to-justice is getting worst as time passes by. However, a dramatic change has already been applied to the American medical liability system which originated from the Tort system. Americans, before, have limited access to legal representation since they must pay the lawyer’s fees whether they win the case or not. Only limited people have the resources to pay for the litigation expenses. Nowadays, the contingent fee arrangements were modified into a system where everyone can get access to legal representation. However, the lawyer’s acceptance to a medical malpractice case will be the determining factor. Thus, another obstacle for gaining compensation for the victim’s injuries (Budetti & Waters, 2005).
With the problems encountered regarding compensation for the legitimate victims of medical malpractice, it is important to establish another system without depending on the justice system. It is obvious that not many American victims can spend more money on litigation expenses even if they have a legitimate claim regarding their complaints. The lacking compensations for the victims have reduced the deterrent effect of the medical liability system. There are fewer incentives for the medical community. The physician’s involved or who might be involved in the future are less alarmed by the liability system. Those who cannot acquire legal representation are automatically excluded in the compensation system since they cannot avail the services of the civil justice system. Without employing any change in the medical liability system, the problems regarding access-to-justice will just hinder the two main functions of the system that are compensation and deterrent functions. American reformists who are wants change within the medical liability system have proposal on how they can improve the compensation function. One of the reforms aims to find ways on increasing the willingness of the lawyer to handle such cases or by providing compensation to malpractice victims by not depending on the law system. Funding the legal service can also be a possible solution to the compensation problems. Through this way, the lawyers will be compensated for their time. A reform that proposes the imposing of fines on lawyers who will not accept legitimate cases with low damages will also be a good option. Approval of these choices regarding being strict with the acquisition of lawyers for litigation of the malpractice cases will most likely undergo a long debate. Additionally, a system that will not be dependent on legal representation can also be considered. One of the proposals in Shepherd’s (2014) paper aims to establish an administrative compensation system wherein the medical malpractice claims will be handled by them instead of the judicial system. Reformist refer to this as the Patients’ Compensation System (Georgia Public Policy Foundation, 2013). It is a better alternative to medical malpractice litigation. This system will not require legal representation and the victims will not incur expenses for litigation. They will not also experience any delays from the court system. The establishment of the Patient Compensation Funds which aims to give insurance pools to the malpractice victims will also be a good solution (Budetti & Waters, 2005).
With the challenges in the American medical liability system, it is important that the people who are in charged with this system to re-established the two main objectives which are compensation and deterrent. This liability system must undergo dramatic changes by considering the capacity of the victims for earning the compensation they needed and the justice they deserve.
Budetti, P.P. & Waters, T.M. (2005). Medical malpractice law in the United States. The Henry J. Kaiser Family Foundation. Retrieved from http://www.badfaithinsurance.org/reference/General/0375a.pdf
Georgia Public Policy Foundation. (2013). A New Approach to Medical Malpractice Reform. Retrieved from http://www.georgiapolicy.org/ftp_files/MedicalMalpractice.pdf
Kessler, D.P. (n.d.). The Effect of the U.S. Malpractice System: A review of the empirical literature. Stanford University. Retrieved from http://www.pointoflaw.com/pdfs/kessler-malpractice-jced1.pdf
Shepherd, J. (2014). Uncovering the silent victis of the American medical liability system. Vanderbilt Law Review, 67, 151-192.