Tort and medical compensation

A tort refers to any act that is wrongful, and causes injury or damage for which the person harmed can seek monetary compensation in civil court.

Doctor malpractice occurs when patients are harmed by the error or negligence of doctors or physicians.

Doctors and hospitals have liability insurance to cover medical or doctor malpractice claims. If the parties cannot agree on the amount of medical compensation for an injury, the injured patient may bring a doctor malpractice action against the physician and other health care professionals who caused the injury.

Theoretically, in a medical lawsuit, the right to sue should ensure that injured plaintiff receive medical compensation, and our justice system should ensure that only those patients who are harmed by negligence should receive medical compensation.

However, evidence reveals that this isn't the case in real life.

Regarding instances of medical or doctor malpractice, the vast majority never lead to a lawsuit. And if ever lawsuits are filed, a significant number do not even involve doctor or medical malpractice; and juries do not always make the right decisions, according to the Harvard Medical Practice Study.

The study also shows that fewer than 2 percent of malpractice victims and their families ever file a medical or doctor malpractice claim; and even fewer receive medical compensation.

Nonetheless, we can also see how pervasive medical or doctor malpractice litigation is. In fact, most physicians during their career are sued at least once. Every year about one-fourth of doctors face medical lawsuits.

Most doctor malpractice cases are settled out of court. On the other hand about 10 to 20 percent of the doctor malpractice instances go to trial.

These outcomes are a result of the doctors' and hospitals' incentives, as well as those of patients and medical lawyers, under the tort liability system.

A tort judgment's potential financial cost, theoretically speaking, grants doctors and hospitals an incentive to avoid medical errors.

However, what is actually happening is that community-rated insurance (where doctors in a specialty, regardless of their individual claims record, are charged the same premiums) financially insulates physicians who are negligent from catastrophic judgments by shifting to other doctors their claims cost.

At the same time, the threat of litigation encourages physicians to practice a medical lawsuit avoidance strategy called "defensive medicine."

There are many forms of defensive medicine, and one of them is ordering unnecessary tests and procedures that add to health care costs, even though they do little to reduce medical errors or improve the patient's condition.

Fears of medical or doctor malpractice litigation have discouraged doctors as well as hospitals from revealing information regarding potential errors. This makes it difficult to improve health care quality.

To minimize these costs and help elevate health care quality, Congress has attempted a lot of times to pass malpractice reforms with hardly any success. A lot of states also passed their own reforms. While these reforms have been successful in some states, they have had little effect, if any, in other states.

It is generally agreed, however, that an efficient medical compensation system would yield these results:

1. medical compensation for every patient (potentially) who is injured by a medical error;
2. Full medical compensation;
3. Reduce the cost of determining medical compensation; and
4. encourage doctors (including other health care professionals) and patients to act in ways that minimize errors.