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The President of the American Academy of Emergency Medicine writes:

Predictably, the subject of tort reform receded from the media spotlight when the democrats became the majority party in Congress. Although organized medicine cannot continue to place tort reform at the top of its national lobbying agenda at this time, it remains an important issue in state legislatures. Furthermore, beyond the necessity of lobbying legislatures, organized medicine has a duty to explain this issue to our patients and the general public.

Reform of our reckless tort system remains an absolute necessity for the future vitality of the medical profession. Most emergency physicians work 2-3 months per year to pay their malpractice insurance premiums and to continue feeding the litigation industry. This industry generates a tidal wave of litigation against physicians, with more than 80% of all cases having no basis in fact. (1) Furthermore, the ability of a
plaintiff to recover damages has no correlation with fault. (2) The ability to recover damages only correlates with the presence of an injury. This evidence proves that we have a broken tort system. We must look to state legislatures to provide relief.

Ahem.

The Sapped Vitality of the Medical Profession?

Is the vitality of the medical profession under threat? From 2002 to 2007, the number of applicants to U.S. medical schools grew by 25.8%, and the percent of those applicants with clinical community service and research experience has increased during that time, indicating a higher-quality applicant pool. The number of medical doctors in America doubled between 1980 and 2005. Emergency medicine, the branch Dr. Larry Weiss represents, is especially thriving, with five times as many practitioners in Emergency medicine in 2005 as in 1980.

It may sound awful that “most emergency physicians work 2-3 months per year to pay their malpractice insurance premiums,” but according to a review of placements by Merritt Hawkins in the 12 month period from April 1, 2007 to March 31, 2008, the average base salary to hired emergency physicians not counting benefits offered for new hires during that time was $240,000 per year, and the Medical Group Management Association reported a higher average overall in 2007, $256,800; emergency physicians’ pay went up by 5.6% between 2003 and 2007, controlling for inflation. If an emergency physician really has to spend as much as 1/4 of their salary on malpractice insurance premiums, that leaves $192,600 per year in income. Report that annual income after malpractice insurance on the street, and wait for the world’s smallest fiddle to play a sad tune for you.

… and no, it’s not because emergency physicians are working all hours, burning the candle at both ends. The SAEM 2004-2005 survey of work hours shows an average total workload of 43 hours per week. That’s a respectable amount of work per week. But it’s not more hours than the typical full-time worker logs in. Yes, emergency doctors work hard. So do all kinds of people. ER docs make a lot more money than other hardworking people.

The tuxedo doesn’t help with the argument.

The Tidal Wave of Litigation?

A tidal wave of litigation? A tidal wave? There is no tidal wave of medical malpractice litigation. As Public Citizen demonstrates using a compilation of National Practitioner Data from the federal government, the number of malpractice payments per capita has actually decreased since 1991:

And in constant dollars (that is, when you control for the effect of inflation), the median settlement value hasn’t really changed at all:

“Aha!,” shout the statisticians. “You report the median, which doesn’t account for outliers. I bet there were a lot of really big settlements that are outrageously large, like in the millions!”

But no, actually, the share of settlements larger than a million dollars have actually gone down over time when you take inflation into account (which is what you always should do):

Unjust Litigation?

Dr. Larry Weiss’ last claim on behalf of his fellow members of the American Academy of Emergency Medicine is that malpractice litigation against doctors is unjust. In an appeal for support of his claim, he offers two citations to the New England Journal of Medicine. Two citations look better than one, but the two citations actually refer to one single dataset. The dataset contains 46 resolved malpractice cases from New York State alone dating back to 24 years ago, and as they really ought to the authors acknowledge that the generalizability of their results is suspect.

A larger, more recent study covering 469 separate medical institutions across the Northeast, Mid-Atlantic, Southwest, and West empaneled an impartial academic review panel. This panel judged that 1,406 legal claims involved some injury. That review panel determined that medical error was involved in 889 of those cases and uninvolved in 515 cases. In the cases for which medical error was determined to be involved, 73% resulted in payment and 27% resulted in nonpayment. In the cases for which medical error was determined to be uninvolved, 72% resulted in nonpayment and 28% resulted in payment. That distribution of outcomes is consistent with a model of justice.

I’m not trying to knock emergency medicine physicians, who work hard and save lives and should be applauded. I’m knocking the exaggerated scare tactics used to justify changes that would make it harder for people injured by medical error to be compensated, to the benefit of people who really make enough money already.