The Medical-Malpractice Crisis

The medical-malpractice crisis, which seems to occur about every 10 years, is back again and essentially unchanged. The causes of it are the same. The proposals to correct it are the same. The self-interests of two organized groups that profit from the health care system — doctors and lawyers — are the same. And, indeed, the high degree of self-righteousness in both groups is the same.

Lawyers blame doctors; doctors blame lawyers. Neither group seems to give a hoot about the one group that doesn't make any money out of the system — the patients. They, in fact, are the source of income for the lawyers and doctors.

Doctors want legislatures to set caps on punitive damages. That's the solution most often proposed. Sometimes they want the legislatures to set up what would amount to a doctor-dominated screening committee to prevent a lot of people from ever getting to court. In other words, doctors want to be protected from the consequences if they, by gross incompetence or carelessness, kill or permanently disable one of your children.

Doctors, in fact, are the only people who can commit manslaughter and never face criminal prosecution. Get drunk or doped up and kill somebody with your car and you face criminal charges. Get drunk or doped up and kill somebody in a surgery and maybe — if somebody in the room rats you out — you might get sued in civil court. High-toned scholars at Harvard have estimated that doctors knock off about 90,000 to 100,000 people a year with innocent mistakes or plain malpractice. That compares, by the way, with about 1,400 accidental deaths from firearms.

Lawyers blame high insurance rates not on outrageous jury verdicts but on the bad stock market. They essentially want the legislatures to do nothing. After all, for them, it is a profitable system as is.

Here's what should be done:

1. Regulation of the conduct and competence of lawyers should be taken away from lawyers. Lawyers are as reluctant to dump an incompetent or even criminal lawyer as they are to volunteer to clean toilets in a leper colony. A good bit of housecleaning needs doing, and lawyers will never do it.

2. Regulation of the conduct and competence of doctors should be taken away from doctors. They are as bad as the lawyers about protecting their own tribe. Their code of silence is as strict as the Sicilian Mafia's. They don't murder doctors who testify against other doctors, but they sure try to drive them out of business if they can figure out a way to do it.

3. Cap lawyers' fees at no more than 10 percent of the amount recovered. Some lawyers take one-third to one-half of settlements from dying patients for cases that involved no more than a few phone calls and a letter or two.

4. Stop electing lawyers and doctors to legislative positions, and get rid of every judge who thinks the tort system should be a no-fault tort system.

5. More strictly regulate insurance companies. Some states do, and some states don't. An insurance company ought to be forced to show some rational justification for rate increases.

That should be a start. In fairness, both doctors and lawyers are right about some points. Medicine is still more art than science, and the only doctors who should be sued are those where it can be proven they committed acts of gross negligence or incompetence. But the right of the people to seek redress for injuries in court should not be curtailed.

We have evolved a health care system nobody can afford but the government — and even it is now having second thoughts — and a court system that has become a national lottery.