The Legal Examiner Mark The Legal Examiner Mark The Legal Examiner Mark search twitter facebook feed linkedin instagram google-plus avvo phone envelope checkmark mail-reply spinner error close
Skip to main content

This past week, Peter Orszag presented his ideas concerning medical malpractice reform. Basically, he argued that there was a need for evidenced based guidelines. leaving aside the fallacy of the underlying assumption that there is a need for medical malpractice reform, the American Association for Justice took a look at the flaws in his position:

The creation of immunity guidelines is entirely impractical. Throughout the health care debate, opponents of the bill (including many physician groups) blasted the idea of guidelines to practice medicine. You can’t have it both ways. Guidelines take forever to approve, can be conflicting, and may no longer be the best practice once a lengthy vetting process concludes. They can also vary greatly from what is the accepted community standard of care. Just look at the debate that erupted about new mammogram guidelines: if a physician feels that one is warranted, but the guideline says no, should the doctor do what’s in the best interest of the patient, or what a Washington bureaucrat demands?

Not once in his column does he mention the epidemic of medical errors that plagues our health care system. According to the Institute of Medicine, as many as 98,000 people die every year from preventable medical errors, costing $29 billion annually. Just this week, the Archives of Surgery released a new study showing the astounding prevalence of wrong-side, wrong-site, and wrong-patient surgeries.

Physicians already have significant immunity when negligence injures patients. Orszag fails to point out that over half the states have severe caps, meaning patients often have no recourse at all. There is also no evidence that health care costs are lower in those states; in fact, Texas has some of the highest costs nationally and is often cited as a “model” by tort reform proponents. Doctors who practice the standard of care can already use this as a defense in malpractice cases, buttressed by expert witnesses. Using inflexible guidelines for purposes of immunity just goes too far, especially considering the burden already placed on injured patients when seeking recourse. If a physician does not follow these guidelines, should that automatically mean that negligence has occurred?

Orszag has said multiple times that tort reform will not reduce health care costs. Throughout the health care debate, Orszag debunked the notion that changes to the malpractice system would produce any significant savings, echoing much of the academic literature on the topic (interestingly, his column today says that this very same literature “plays down the role of medical liability laws in driving up health care costs”).

  • “The academic literature on this question [effect of medical malpractice on costs] is not as compelling…as the view among doctors would suggest.” (CSPAN, 6/9/09)

  • “Orszag said limits on medical malpractice awards — which many Republicans favor, but are not in the bills — would do little to reduce health care costs.” (AP, 12/2/09)

Physicians have already stated that their knowledge and expertise, not Washington bureaucrat guideline-makers, should guide how medicine is practiced. The AMA has even acknowledged that there is often a conflict of interests with professional medical associations that write guidelines and the pharmaceutical and device makers that fund them. A much-cited 1999 JAMA study found that physicians don’t follow guidelines for an array of reasons, and the threat of liability is very low on the list.

The focus should be on patient safety and reducing the number of preventable medical errors that occur annually, not providing even more immunity to wrongdoers when negligence occurs.

There is no need to add this kind of protection for doctors and if added it is unlikely to save any lives.


  1. Gravatar for james O'Hare RPLU AIC AIS
    james O'Hare RPLU AIC AIS

    Lets try to sift through all of the chaff to find some wheat.

    Re Medical guidelines: a medical recipe for treatment. Just because you know the recipe does not mean that you can cook, medicine is art and science. This is a silly argument. Anybody that I know that can cook does not use a cookbook.

    Re Improving malpractice rates: Get more nurses and shorter shifts. We are not a proactive country, we react. Fatigue and poor communication is at the root of most claims. pay the nurses and more of them to curtail claims.

    Re 98, 000 die each year from med mal. Those that claim that are nuts. Nobody is in charge of counting dead people due to med mal. How is that done? A complete guess based on multiple assumptions a la Glenbecksky.

    Explain the remote possibility that that number is credible? I am open to any reasonable methodology. The giants won game 1 of the WS. Fill that stadium twice with deceased med mal victims- Really?

    I know that you are just reporting what someone else said - please examine it critically, and yes, one is too many.

    Why are the number of claims dropping if there are so many good ones. I cant believe that the plaintiff bar is missing out on so many opportunities. Almost 100000 wrongful death cases a year. Maybe all of those grieving families are unaware that there is a case. In our society where we sue the dry cleaner for million$ for a ruined pair of pants- or- mcDonalds for making me fat. There is a disconnect in there.

    RE connecting the cost of health care to the effects of med mal. The high cost of health care is it's own independent problem, due to lack of competition, caused by McCarron-Ferguson. That is the big gorilla in the room, not caps and med mal. Without competition we'd still be driving model T's.

    Hell - if competition brought the costs down, I'd have every test there is, just to make sure that the doc got it right, and it would probably be the new standard of care.


    Jim O'Hare RPLU AIC AIS

    VP Claims Physicians Ins Co Pompano fl

  2. As you know there are people all the time that contact us with legitimate claims that won't go forward because the damages aren't high enough vs the cost of bringing a claim, or another good doctor fixed the bad work.

    While a number of things you say make for interesting points they do nothing to support the issue of the piece that Orszag is simply all wet. Thanks for taking the time to read and comment.

Comments are closed.

Of Interest