An article in the New England Journal of Medicine suggests some very useful ways to curtail medical malpractice awards.
Insurance against these damages comprises a major part of the lofty physician and hospital fees and health insurance premiums that patients must pay in the United States.The report said doctors here are sued five times more often than those in Canada. One of the reasons is that theatrical American tendency to sue over everything under the sun. But in medical disputes it is exacerbated by the prospect of emptying the presumed deep pockets of physicians and insurance companies.
The trouble is the costs of these suits are indirectly passed through to everyone. And as for insurers' pockets, that industry, like its cousins in banking, is suffering a lot of financial stress these days.
In Canada, the report notes, malpractice insurance rates are only one-ninth of those paid by American doctors. Our northern neighbors can provide us with some useful lessons in reducing these expenses - and in so doing making health care more affordable in the United States.
For one thing, Canadian courts rarely give punitive damages. And pain and suffering awards, a particularly murky and subjective area, are wisely limited to a relatively modest $200,000. For another thing, Canadian judges - and not juries - usually decide malpractice suits. That acts to reduce the number of outrageous awards because court-wise judges are much less likely to be swayed by melodramatic pleas.
And there is much less of a tradition in Canada for lawyers to take cases in exchange for a percentage of the settlement. This dramatically reduces the incentive to drum up lawsuits in the carnival barker style of many American lawyers working on a "contingency basis."
Finally, losers in Canadian lawsuits must pay a large part of the winners' legal fees. This, too, discourages the sort of nuisance lawsuits against doctors and insurance companies that in the United States tend to end up with the plaintiffs being paid off with cash settlements in return for dropping their suits.
Whatever else one thinks of Canada's national health system, it seems clear that at least their methods of dealing with malpractice lawsuits are more reasonable than ours. But will the lawyers dominating state legislatures tolerate broad reforms in the United States?