So the New York Times printed a couple point/counterpoint-style op-eds on Sunday (here, here) about whether the national health care bill should also restrict liability for doctors and hospitals who injure or kill patients.
Our friend Tom Baker, who wrote the fantastic book “The Medical Malpractice Myth,” and is now at the University of Pennsylvania Law School, wrote one of the op-eds. In it, Baker does a bang up job of exposing the abject hooey driving the arguments for taking away patients’ legal rights, including “defensive medicine” and pointing out, as we so often have, that “[p]reventable medical injuries, not patient compensation, are what ring up extra costs for extra treatment.” Baker also provides concrete examples of how medical liability helps make patients safer.
Baker goes on to add that insurers should “provide quicker compensation to deserving patients,” (though unfortunately, we know they often don’t).
As for the second piece by Harvard profs Michelle Mello and Amitabh Chandra…unfortunately, the authors throw around, without any support, some concepts that Baker and others have debunked, like so-called “defensive medicine.” But this particular piece went further, by raising two incredibly troubling policy proposals.
The first was premised on the notion that there is some chiseled in stone-type master list of “medical guidelines,” and that doctors who adhere to it, no matter how much harm they inflict on patients, should be legally off the hook. There is certainly nothing wrong with bringing “evidence-based medicine” into health care practice. But allowing clinical practice guidelines to become the sole legal standard for deciding negligence is a terrible idea.
The second proposal would consider taking away the right to jury trial for families with babies injured at birth, setting up birth injury funds. Incredibly, the authors cite two states with experience with this: Virginia and Florida. However, they omit the fact that Virginia’s program has been a tremendous failure on every level (see evidence here), and that Florida’s program is hardly worth mentioning, as it allows claimants to “opt-out” and proceed directly to civil court—which, incidentally, most of the state's residents do.
Needless to say, here's our verdict: game, set, and match to the op-ed by Tom Baker!
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