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Excerpted From: Cassidy Viser, The Economics of Injustice: Stratification in Medical Malpractice Claims by Poor and Vulnerable Patients, 29 Georgetown Journal on Poverty Law and Policy 273 (Winter, 2022) (85 Footnotes) (Full Document)


CassidyViserMuch of the debate over tort reform has centered on often-competing value systems, such as the benefits of increased patient care versus the spiraling costs of premiums, or the effects of unbridled litigation versus the negative effects on medical communities. This framing often casts medical providers against patients who are perceived to be the most likely litigious; but in fact a host of strategies, such as increased practicing of defensive medicine and proposals for safe harbor rules or communication-and-resolution programs, all aim in some important respects to limit health care providers' liability. The tension between the economical functioning of our health care system and the general welfare of patients is complicated by the fact that doctors' perceptions of how likely a patient is to sue for malpractice necessarily has some downstream effects on that patient's care--a concern which is magnified when those perceptions do not align with reality.

Studies have found that many physicians--and advocates of tort reform, however those groups may be correlated--believe that poorer patients are more likely to sue their physicians. However, data confirm that poor and uninsured patients, including those recipients of Medicaid and Medicare, are far less likely than the average patient to sue for malpractice. Though there have been no studies to determine the prevalence of physician misconceptions that poor and vulnerable patient groups are more prone to sue, the potential adverse effects on social welfare stemming from those negative attitudes clearly abound. As Studdert et al. have characterized the issue:

Subjecting physicians to meritless malpractice claims is costly, wasteful, burdensome, and unjust .... However, every bit as troubling from a social justice perspective are the many victims of medical negligence who do not file suit and hence are probably never compensated for the economic loss and pain and suffering they experience as a result of their injuries.

This paper aims to explore the intersections between medical malpractice claims and vulnerable populations of patient groups--the poor, the uninsured, and the elderly--and investigate the effects of misplaced physician attitudes towards those groups on their care. Section II discusses physicians' fear of malpractice liability with respect to vulnerable patient groups and the consequences for those patients' care. Section III analyzes the empirical literature on rates of litigation by patient populations. Section IV evaluates strategies for effective and equitable deterrence, and proposes recommendations. Section V concludes.

[. . .]

Economic inequality is, and has been, growing in the United States. This much is largely undisputed. But so is care inequality. Because physicians are less likely to accept poor, uninsured, Medicaid, Medicare, or “high-risk” patients for care, partly motivated by unfounded fears that those patients are more litigious, many vulnerable patient groups are forced to seek out substandard care or go without care altogether. Moreover, tort reforms have largely been focused on reducing physicians' liability and impeding plaintiffs' abilities to bring claims, not focused on patient protection and access to care. As Jill Lepore has written, “[t]he growth of inequality isn't inevitable. But, insofar as Americans have been unable to adopt measures to reduce it, the numbers might seem to suggest that the problem ... lies with Congress.” The only relevant standard of care, for a plaintiff, is the standard of care that can be enforced.

A vicious cycle ensues in which physicians, fearful of liability, practice more defensive medicine (on one end of the spectrum, ordering unnecessary procedures and tests, and on the other, barring certain patients from receiving care altogether), which in turn drives up health care costs. Poor and vulnerable patients face dire consequences: it is harder for them to receive care in the first place, and when they do, and are the victims of negligence, it is harder for them to seek compensation for the resulting harm. We should have serious public policy concerns not only about these insidious kinds of physician attitudes, but the tort reforms that serve to reinforce them.

Cassidy Viser is a J.D. candidate at Georgetown University Law Center, class of 2022.

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