Health-care litigation costs America far too much

...in the Washington, DC, area...it costs $118,000 a year to insure just one [obstetrician/gynaecologist] against malpractice lawsuits. That is more than the total cost of employing a doctor in most countries.

Trial lawyers argue that malpractice lawsuits deter negligence. Craig Dickman, an obstetrician affiliated to CWC, says they mostly deter the kind of behaviour that might get you sued, which is not the same thing. To cover himself, he says, he orders excessive tests, monitoring and consultations with specialists. He guesses that 12%-15% of the procedures he bills for are unnecessary. If he fails to order every imaginable test, even if there is "no clinical evidence of efficacy", he is exposed if something were to go wrong. A trial lawyer can scour the country for the one expert who thinks that his omission might have caused the patient's injury....

The cost of medical-malpractice lawsuits has risen more than 2,000% since 1975, to $26.5 billion in 2003, according to Tillinghast, an actuarial consultancy. And to what end? A study of malpractice suits in New York by the Harvard Medical Practice Group found that plaintiffs had actually been injured by doctors' negligence in only 17% of cases. Those patients with small claims often cannot find a lawyer to represent them, while those who win find their lawyers have swallowed half the payout from the doctors.

American health care is bedevilled by two problems that lawsuits do nothing to heal. First, health care costs too much. Americans pay twice as much per head for health care as people in other rich countries. Rising health-care costs threaten the solvency not just of private firms such as General Motors but ultimately also of the government itself. Second, some 46m Americans languish uninsured....

Can legal costs be curbed? You might imagine that the Democrats would be keen to change a system that leaves so many poor people uninsured, overcharged and uncompensated. But the party gets a lot of money from trial lawyers and even chose one, John Edwards, as its vice-presidential candidate last year. So it is left to the Republicans (who get even more money from insurers and hospitals) to be the keenest promoters of tort reform.

...many of the costs of the current system are hidden. Studies have found that "defensive medicine", of the sort Dr Dickman describes, more than doubles the costs that malpractice suits impose on health care, and sometimes prompts doctors to hack patients around more than is healthy....

...total costs, direct and indirect, of health-care litigation (including suits against doctors, drug firms, HMOs, nursing homes and so on) could be as much as $200 billion--a Hurricane Katrina every year. This figure involves some heroic extrapolation, but even half that sum would seem a lot to pay for a system that is not even good at compensating patients who are injured....

[A] sensible idea would be specialist medical courts.... Cases could be decided by judges who heard only medical cases, rather than by juries. The court could call its own neutral expert witnesses, rather than relying solely on the partisans hired by the litigants. Non-economic compensation for pain and suffering would be according to a fixed schedule--so much for an arm, etc--rather than by having jurors pluck a number out of the air.