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When it’s the Doctor’s Fault: Just Say No to No-Fault Malpractice Laws

Currently, voices from the Florida Medical Association (FMA) are advocating a “Patient Compensation System.” This is the latest effort by the FMA to deprive Floridians of their civil justice rights. In the past, the FMA has lobbied for and obtained countless legislative restrictions on the right to make and pursue medical malpractice claims. Over the years, the FMA has also sought and obtained caps on damages that limit the amount an injured patient can recover from a negligent health care provider or its insurer, and it has sought to limit the attorney’s fees patient’s lawyers can receive while putting no limit on the amount a health care provider’s lawyer can earn. The FMA has a long history of looking out only for its members’ own pocketbooks. I cannot remember a single time when the FMA has lobbied or advocated for expanding patients’ legal rights. This is no different.

Today, the FMA’s cry for a no-fault, workers compensation type of system in place of the current tort system is, once again, an idea aimed at enhancing profits for physicians and restricting legal rights and access for injured patients. And in fact, the only group that this law is assured to benefit is the insurance industry. The song remains the same. This new idea would strip patients of the right to a jury trial, it would put bureaucrats in charge of decisions regarding compensation, it would, as it has in the workers compensation system, enhance the power of insurance companies, and it would severely limit the compensation available to patient lawyers and advocates. In sum, its purpose is to reduce compensation to patients and stack the decks in favor of the insurance industry. The benefit to the Florida Medical Association? They believe it would reduce their medical malpractice insurance premiums.

The FMA has been a puppet of the insurance industry for decades. For example, against its members’ own interests, the FMA continually lobbies for the elimination of bad faith laws, laws which protect the insured physicians as against the medical malpractice insurance companies. In my view, the insurance industry has outsmarted the doctors. Preying on the average physician’s ambivalent and often hostile view of the civil justice system and of trial lawyers, the insurance industry manipulates the doctors into lobbying for laws that, time and again, enhance the insurance industry’s profits. Then, after the laws are passed, the insurance companies keep their premiums high and the doctors suffer. At every turn, whenever the doctors breathe in the direction of blaming the insurers for raising rates, the insurance industry tells the tale of runaway juries, greedy lawyers, and a broken system. The doctors buy it and we get another round of lobbying for legislation that will hurt patient rights, enhance insurance profits, and do little for the doctors. The bottom line is the bottom line: insurance companies make more money and Florida’s citizens lose legal rights.

The current justification for the Patients Compensation System is the claim that doctors in our country are ordering over $640 billion worth of useless medical tests and procedures. The argument is that our trusted physicians are knowingly and purposefully ordering these useless tests and procedures because they are afraid of medical malpractice cases. The claim is that “defensive medicine” is the culprit. If only the greedy trial lawyers could be stopped, we would save $640 billion in health care costs. So, we should eliminate patient rights altogether and throw the jury system out altogether when it comes to medical malpractice. We should hand it over to a system dominated by insurance industry bureaucrats.

The advocates of the Patient Compensation System argue that health care providers, unlike any other profession or industry, should be spared personal responsibility for their negligent care. The Patient Compensation System would remove the constitutional rights of access to courts and to trial by jury for Florida’s patients and their families.

In Florida it is a felony to knowingly order a useless test or procedure on a patient without any medical indication other than fear of a plaintiff’s lawyer.

The reality is that the same doctors and hospitals that are ordering and performing these $640 billion worth of useless tests and procedures are also receiving $640 billion for their work. Every time a test or procedure gets approved by an insurance company, the company pays a doctor or hospital, or both, for that work. Unnecessary tests are highly profitable.

At the outset, I wonder whether we should believe the underlying premise that there are $640 billion in useless tests and procedures? And if we believe that figure, should we believe it is a felonious exercise in order to fend off the trial lawyers? If physicians are involved in a massive, nationwide $640 billion felony, isn’t the more likely explanation that profit seeking is the motivator as opposed to fear of a possible lawsuit in the distant future? Perhaps it is simply more convenient, and more enticing, to blame the whole thing on the bogey monster, in this case the greedy trial lawyers.

Or, is there another explanation? Perhaps it is the vantage point of hindsight that enables the conclusion that these tests were unnecessary. Perhaps, at the time they are ordered, the tests are mistakenly ordered by those particular doctors (and trust me they are out there) who are either not the best, not the smartest, or simply human beings capable of making mistakes.

Don’t be fooled by the hype and propaganda. Civil justice rights are at stake. Make sure the arguments are based on cold, dispassionate facts, not emotional attacks against lawyers and juries. The Patient Compensation System is wrong for Florida. It is wrong for America. And it is wrong for injured patients. It is only right for the insurance industry’s bottom line.