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In a recent speech to the AMA, President Barak Obama tantalized the assembled with the possibility of reforming medical malpractice law as part of the comprehensive health care system overhaul.

There is no denying the fact that American malpractice laws and awards contribute to the overall cost of medical care. The American system of malpractice law provides four distinct areas that drive up the cost of suits brought for medical malpractice. From the Wall Street journal article:

The first is jury trials, which can veer out of control and in any case introduce significant uncertainty. The second is the contingency-fee system, which allows well-heeled lawyers to self-finance litigation. The third is the rule that makes each side bear its own costs. This induces riskier lawsuits than are undertaken in most other countries, such as Canada, England and most of Europe, where the loser pays the legal costs of the winner. The fourth is extensive pretrial discovery outside the direct supervision of judges, which occurs far more readily here than elsewhere.

Besides these four things, American judges often let juries decide whether honest mistakes are malpractice instead of requiring specific acts of negligence be defined or of showing the precise causal connection between a negligent act and actual injury.

But before anyRochester medical malpractice attorney worries about being put out of business, Mr. Obama hedged his bets by declining to endorse the only medical malpractice reform with real bite — a national cap on damages for pain and suffering.

This cap would make a substantial difference. Other reforms, such as rules that limit contingency fees, shorten statutes of limitation, or confine each defendant’s tort exposure to his proportionate share of the harm, have small and uncertain effects.

Further complications occur with the latitude individual states have in setting malpractice rules and further differences occur between juries of big cities compared to those in small towns. It’s been suggested that putting in place a specialized commission such as they have in France that has uniform rules to follow and set guidelines for awards be used in place of the present system. While this step isn’t one I’m particularly in favor of, I can see certain merit to having a board review the facts of a case before it’s sent to a jury to determine if a malpractice was actually done and set a pre-trial awards scale that the jury or judge must adhere to. Sort of like an inquest in the case of a suspicious death.

And it isn’t the cost of malpractice insuranace that is driving up the cost of health care so much as defensive medical practices are. Physicians, in an attempt to avoid malpractice suits often prescribe tests and drugs they would not otherwise prescribe in order to avoid being seen as negligent. It’s these practices that are driving up the cost of health care in America.

Reorganizing malpractice laws and setting caps on awards would go a long way to controlling this aspect of health care.

What do you feel about malpractice suits? Do juries sometimes go too far in their awards? Is a jury trial the best way to handle malpractice?