Let the Chips Fall: Bioethics Should Support Civil Justice
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Bioethics concerns justice, fairness, and the social determinants of health. One example of an area in which bioethics can contribute to promoting justice is in advocating for access to civil justice. While few people (and a decreasing number of people) wronged in a tort actually file a lawsuit, the ability to do so is a cornerstone of civil justice. Three trends risk ending avenues to justice for people harmed accessing care: healthcare worker immunity, tort reform, and mandatory arbitration clauses. Tort reform refers to damage caps, increased standards of proof, and limitations on contingency case fees or testimony, among other provisions. Supporting the freedom of people to right a wrong or seek damages when the unthinkable happens is an ideal role for the bioethics community. While most people injured in a tort won’t sue, knowing that a fair system exists gives victims and people accessing care peace of mind. With the growing use of hospital ethics committees to resolve disagreements during care, and arbitration clauses, potential or short-term immunity, and tort reform, victims of torts may feel isolated in their suffering at the hands of a system that prevents or deters them from seeking remedies in civil court. The right to civil justice should be framed as a comfort crucial to the wellbeing of people accessing care rather than a threat to doctors or the healthcare system, which it is clearly not.
Civil Justice in the United States
The civil justice system in the US is a procedure meets substance endeavor. The goal of civil justice is conflict resolution, yet theories of jurisprudence offer civil justice as imperative for social policy and behavior modification. “[I]n ‘Against Settlement’ Professor Fiss objected that ‘[t]he dispute-resolution story makes settlement appear as a perfect substitute for judgment … by trivializing the remedial dimensions of a lawsuit, and also by reducing the social function of the lawsuit to one of resolving private disputes’ (Fiss 1984: 1085).”[1] There are important differences between arbitration, mediation, let alone ethics consultations, and litigation. One ethical issue is the importance of an objective forum for adjudication, a jury, and a day in court.
Alternatives Can Be Valuable but Should Not Supplant Civil Justice
A patient wishing to have open conversation should be welcomed. Any dispute resolution path that avoids court has potential to be good for both parties as long as the injured victim feels heard and compensated and has a choice. Forced arbitration is an unwelcome development. President Biden just signed off on a US ban on forced arbitration for sexual harassment and sexual assault cases. Hopefully, expansion of that sentiment will follow in the form of broader bans. Sometimes, arbitration or mediation is not independent enough and it does not shape future behavior and legal expectations as well as caselaw does. Arbitration may lead to a split or compromise rather than a meaningful dispute resolution, and it has different discovery and evidentiary rules from court systems. Access to fairness is heavily debated.
Is There a Need for Tort Reform?
I argue that there is not a need for tort reform. Access to civil justice is already in jeopardy. In the context of medical malpractice, the data indicate cases are rarely deemed frivolous; if anything, they are expensive to bring. Medical error is a leading cause of death, but most people do not sue their doctors for mistakes (negligent acts). I do agree with those who rally around tort reform that there are some plaintiffs who are undeserving or file claims in bad faith. Some verdicts are too high, and some areas of medicine are more vulnerable to excess lawsuits filed due to bad outcomes resulting from predictable risks. But I think fixing the system of flagging frivolous cases, of which there are relatively few, and punishing attorneys through tools like revoked licensing or contempt of court orders works well. The expense of bringing a case is an additional check on frivolous cases but poses an impediment to bringing appropriate actions. Under the backdrop of the relationship between doctors and those accessing care, where the power and knowledge asymmetry remains strong, foreclosing access to courts and to noneconomic damages is unjust. Movements to pay homage to patients’ rights cannot overlook access to courts as one tool among many to make up for errors that amount to gross negligence.
The Data
Medical malpractice in New York accounted for about 7.4 percent of all torts, and about 1.1 percent of all civil cases. Across the US medical malpractice varies from .01 percent to .55 percent of all civil cases. Johns Hopkins found that only 1 percent of harms due to medical negligence resulted in a claim. Fewer result in a lawsuit. Two percent of claims result in a lawsuit. Providers win about 75 percent of the time.[2] The New England Journal of Medicine found that about 3 percent of medical malpractice suits were frivolous, and that in equivocal cases, providers win significantly more. Physicians have had to pay something beyond that covered by insurance in only .6 percent of medical malpractice cases. Only two percent of damages paid are paid by an entity other than the insurer, and that includes those paid by large hospital systems. “Roughly 2 percent of physicians accounted for almost 40 percent of all paid medical malpractice claims.”[3] Twenty-two states and DC have no caps on damages. According to Becker’s Hospital Review, in many of those the payouts are decreasing, and in some states without reform, they are increasing. Plaintiffs do not tend to prevail in medical malpractice lawsuits, yet large verdicts garner more media attention.
There is significant data on insurance premiums that refute the argument that malpractice insurance makes practicing medicine so expensive that it somehow harms availability of medical care, causes an uneven state-to-state relocation that favors states where tort reform was enacted, or forces physicians into early retirement, although it may be a factor among many. And even the strictest tort reform does not attract significant numbers of doctors[4] or result in mass relocations as seen when Texas reformed its system in 2003. Rather shortages tend to occur due to the highly controlled licensure and medical education requirements and the residency system. Reasons to not go into medicine include high student loans, the system of residency placement, and the sleep deprivation and unhealthy lifestyles in the medical education and early career system. Also contradicting the tort reform argument that without reform doctors will move to other states, many doctors congregate at large academic medical centers. They appear unlikely to move solely based on capped damages or low insurance premiums elsewhere. They may appreciate prestige, salaries, and location and be more likely to move for job opportunity, cost of living, and family considerations.
Tort reform will not accomplish keeping malpractice insurance premiums low as the business cycle leading to rate hikes operates based on supply and demand. Studies demonstrate that when premiums dip in places with tort reform, they also dip in states without it, and often dip more. Generally, doctors have less coverage than that recommended by the AMA. Tort reform serves to add to the coffers of insurance companies who save in the absence of verdicts. During the pandemic their savings grew. The savings is not passed on to purchasers of medical malpractice insurance. Supply and demand and market forces tend to be more predictive of insurance premiums.
Tort reform does not decrease healthcare costs, resolve shortages of healthcare professionals, or decrease medical malpractice insurance premiums.
The Injured Party Presented as Wrongdoer or Exploiter
While the victims are injured patients who file claims and sometimes lawsuits, victim-shaming is prevalent. In a poll, most doctors sued said they believed the outcomes of their medical malpractice lawsuits were fair. The predominant tort reform narrative ignores the wrong of victim shaming and even depicts those injured in the course of their care as aggressive and their lawsuits frivolous. Victims are also depicted as receiving very high rewards in court. Those in favor of reform tend to argue both that cases that end without any damages are frivolous and that those ending with too much in damages reflect jury error. Yet others cite jury error when cases result in no damages as well. The number of cases with jury awards over one million dollars has decreased 38 percent since 2003. For many injuries it is impossible to be made whole, but a jury award may emotionally support the patient that files a lawsuit.
People receive much less in damages than juries award them:
Are Damages an “Ethical Bad”? An “Ethical Good”?
There is a confusing assumption that damages are bad, and large verdicts signs of a morally corrupt lawsuit-frenzied populace. From a defendant’s viewpoint, damages are bad financially although physicians rarely pay anything out-of-pocket; claims and judgements are paid by insurance. They are bad for the physician’s reputation as well and actual litigation takes time away from providing health care. But fair damages should not be seen as morally wrong, and bioethics could strive to ensure access to courts. Damages may serve as a check on poor physician quality, and they indicate a person injured (or their family in a wrongful death) has been compensated for a loss. Taking the starting point of asking whether damages are morally neutral, neither an ethical bad nor an ethical good, changes the ethical calculus. That makes a better start of a fair ethics debate and removes the assumption of damages as only a bad. Damages as a moral bad feeds into one-sided bioethics that could favor hospitals over patients. Realistically, some damages are less deserved than others; some seem too high for the harm; some too low. Judges and juries err both ways. But to depict high numbers as commensurate with some moral aberration is not accurate. The data merely show some awards are high and most are not. Damages might not hold water as a moral good either, or as enough to make up for egregious error. An apology may be as important to some people as financial awards. A lack of apology may even spark lawsuits. The full story requires the details of the person harmed, the lost income or economic losses, the pain and suffering, possibly a grieving family and the wrongdoing—the gravity of the error, the degree of negligence, they type of negligence, whether there was indifference or malice to the person accessing care. Applying philosophical frameworks, even utilitarianism, may help highlight how to maximize good or utility. Virtue ethics, justice, and common sense could all contribute to an analysis of the ethical value of civil justice and the damages awarded therein.
There are some medical specialties that seem too vulnerable to lawsuits. Protecting those specialties is done through developing a standard of care and adding warnings in the process of obtaining consent. Neurosurgery, obstetrics, and cardiac surgery seem to attract more lawsuits, but those lawsuits do not result in especially higher damages. It could be possible to make people seeking surgery more aware of risks and stave off some of the litigation. It becomes wasteful and time consuming for doctors and makes it difficult to serve their clientele well if lawsuits are filed for known risks that physicians made every effort to avoid. People filing a lawsuit and their lawyers must first look at known risks and sort out ways to air grievances. Some people wish to feel heard if harmed due to bad luck, or a more borderline act of negligence. Medical malpractice generally requires more.
According to Bernard Black, the data do not conclusively demonstrate that medical malpractice damages are an adequate deterrent.[5] Attention to decreasing accidents and errors is important and generally falls within clinical ethics. It is likely that lawsuits are not the only important factor as a check on doctors.
Immunity
During the COVID-19 pandemic, some states enacted immunity for healthcare workers, some specific to COVID-19 care, some broader. (Immunity does not extend to intentionally malicious acts.) Twenty-seven states and DC had some type of immunity for healthcare workers. For example, New York provided immunity during the early pandemic through an executive order. Healthcare worker willingness to work under stressful and dangerous conditions requires concessions to them. But states could support them without resorting to immunity. Some argue that immunity measures may resolve physician fear of liability and could protect the overall system from a largescale systemic failure if many healthcare workers quit at once. The data indicate reasons to quit during the pandemic include burnout, stress, long hours, and heavy patient load rather than fear of liability. Some suggested that immunity would foreclose a wave of COVID-19 cases. An assumption that access to lawsuits is bad feeds the conclusions about COVID-19 litigation. Looking at nursing homes, it is easy to see gross negligence and appropriate grounds to sue.
Torts operate on a reasonable person standard and medical malpractice requires strong evidence. Deviation from the standard of care for reasons that make sense might not arise to malpractice as lawsuits incorporate all relevant circumstances. The pandemic and its stresses and uncertainty would be highly relevant to a COVID-19 medical malpractice or wrongful death lawsuit. The need for immunity is lessened because tort lawsuits account for circumstances. Lawyers and plaintiffs are unlikely to sue unless an action was grossly negligent under the circumstances.
Crisis Standards of Care
Some sweet spot would likely distribute risk differently during the height of a short-term emergency, allowing healthcare workers to engage in actions that would be negligent absent the pandemic (especially if they are necessary) but acceptable (and perhaps the best option) due to the crisis. Delineating crisis standards of care could clarify procedures to use in an emergency or a time of unexpected shortages and avoid a need for immunity. Lawsuits based on deviation from the standard of care would then have more clarity and would stem from deviation from the crisis standard. While many states have adopted crisis standards of care, the public should have input.
Volunteers Are Different
For volunteer healthcare workers, blanket immunity covering medical services provided serves a greater ethical purpose than it does for paid healthcare workers. Volunteers should have full immunity as long as patients are aware their care is provided by a volunteer. Hospitals could also compensate people harmed by mistakes by volunteers. The ethical difference between volunteer immunity and employee immunity rests on duties to the person receiving care, and assumption of risks when offering to help. Like Good Samaritans, volunteers are doing something extra. At some point they do assume some duties and they must be qualified to provide the care. But the pandemic really called for rescue and trained healthcare workers stepped up, came out of retirement or other jobs, and moved among states to fill needed gaps in care.(See the Volunteer Protection Act of 1997 as well.)
Is Bioethics a One-Sided Endeavor?
Immunity is an area where a split between patient, disability, and consumer advocacy organizations and organizations representing the insurance industry, hospitals, and doctors is evident. To me, if there must be “sides”, bioethics should be firmly on the side of people accessing care, but also recognize the obvious importance of every part of the healthcare system including doctors, nurses, lab technicians, and the varied staff that allows hospitals to run. The bioethics community has an ethical duty to question the practice of changing laws to stifle access to courts. Failing to recognize the ethical importance of patients’ rights or overstating the benefits of tort reform would undermine bioethics as an objective profession rather than one entrenched in hospital systems and influenced primarily by doctors.
An open ethical debate in the literature would be helpful on this important issue. Is civil justice an important societal right and is it fundamental to bioethics? I think it is. A critical bioethics calls for identifying the moral challenges and looking at justice and fairness objectively. There are many questions of moral philosophy: Are damages a moral bad? Are they a moral good? Should people who are harmed be made whole and how? How is power distributed when people seek health care? Can courts help rectify power imbalances by providing neutral judgment? Is it vital to democracy that communities take part in deciding on immunity, damage caps, arbitration clauses, etc.? Is a vote (elected legislatures and governors) enough? Is a utilitarian analysis appropriate—and are we maximizing utility? Are the four principles of bioethics undermining civil justice by placing the purported good of the system above the plaintiff?
Proposed blanket immunity at the federal level failed during the pandemic. (See the Coronavirus Provider Protection Act.) Please see below for a list of organizations that signed a letter to the US House of Representatives opposing immunity. They are notably pro-patient and pro-consumer.
Reimagining bioethics as person-centered may require ethical analysis and pushing back against immunity, tort reform, and binding arbitration as they limit access to civil justice. Such things could benefit physicians and hospital systems by protecting their reputations as a practical matter, but their ethical value needs debate. There is room for middle ground where the civil justice system as a safety net remains intact and thriving for the injured plaintiffs who wish to sue. The best way to avoid lawsuits is to ensure high quality care and take steps to avoid errors. Some errors are not due to negligence, and some injuries are due to bad luck, and while they do not rise to needing medical malpractice litigation, they require financial coverage.
One benefit of civil justice is the sense of justice — people appreciate the ability to be heard, feel recognized, and the chance to let the chips fall where they may even if that results in losing a case. Impediments to access to justice, the feeling a grievance is not heard or is not heard before a fair authority, and the lingering sense of injustice can further harm a person physically injured or the family members in the case of a wrongful death. While a frivolous malpractice suit would be a waste of resources and would wrongly damage a career, appropriate lawsuits serve to protect people harmed in their pursuit of health care. The elderly and the poor lose the most to tort reform and bioethics owes it to them to oppose reform that privileges doctors and large corporate hospital systems over patients.
AFL-CIO, Alianza Nacional de Campesinas, Alliance for Justice, American Association for Justice, Americans for Financial Reform, Autistic Self Advocacy Network, CAARMA Consumer Advocates Against Reverse Mortgage Abuse, Center for Justice & Democracy, Center for Science in the Public Interest, Citizen Works, Coalition of Labor Union Women, Coalition on Human Needs, Consumer Action, Consumer Federation of California, Consumer Reports, Consumer Watchdog, Consumers for Auto Reliability and Safety, Earthjustice, Economic Policy Institute, Essential Information, Food & Water Action, Georgia Watch, Impact Fund, Justice in Aging, Main Street Alliance, Maurice & Jane Sugar Law Center for Economic and Social Justice, Minority Veterans of America, National Association of Consumer Advocates, National Center for Law and Economic Justice, National Consumer Voice for Quality Long-Term Care, National Consumers League, National Council for Occupational Safety & Health, National Council on Independent Living, National Employment Law Project, National Employment Lawyers Association, National Partnership for Women & Families, National Women’s Health Network, National Women’s Law Center, NYPIRG, PCUN, People’s Parity Project, Protect All Children’s Environment, Public Advocacy for Kids (PAK), Public Citizen, Public Justice, Rights & Democracy (NH & VT), SC Appleseed Legal Justice Center, Sciencecorps, Shriver Center on Poverty Law, Texas Watch, U.S. PIRG, United Spinal Association, United Steelworkers, Workers’ Injury Law & Advocacy Group, Workplace Fairness
[1] Marcus R. (2014) ‘American Exceptionalism’ in Goals for Civil Litigation. In: Uzelac A. (eds) Goals of Civil Justice and Civil Procedure in Contemporary Judicial Systems. Ius Gentium: Comparative Perspectives on Law and Justice, vol 34. Springer, Cham. https://doi-org.ezproxy.cul.columbia.edu/10.1007/978-3-319-03443-0_6
[2] David A. Hyman and Charles Silver, “Five Myths of Medical Malpractice,” 143 CHEST 222 (January 2013), https://pdfs.semanticscholar.org/64ee/6d04bf8062dc97449856d89206f8062f1616.pdf
[3] Studdert DM, Spittal MJ, Zhang Y, Wilkinson DS, Singh H, Mello MM. Changes in Practice among Physicians with Malpractice Claims. N Engl J Med. 2019 Mar 28;380(13):1247-1255. doi: 10.1056/NEJMsa1809981. PMID: 30917259. (Stanford University research on malpractice analyzing Medicaid and NPBD data. Researched claims not necessarily lawsuits.) cited in Emily Gottlieb and Joanne Doroshow, MEDICAL MALPRACTICE: BY THE NUMBERS, January 2022 Update, Center for Justice and Democracy, New York Law School.
[4] Bernard S. Black, David A. Hyman, Myungho Park, William M. Sage, Charles Silver, Medical Malpractice Litigation: How It Works, Why Tort Reform Hasn’t Helped. Cato Institute: 2021.
[5] Bernard S. Black, David A. Hyman, Myungho Park, William M. Sage, Charles Silver, Medical Malpractice Litigation: How It Works, Why Tort Reform Hasn’t Helped. Cato Institute: 2021.
Reference
[1] Emily Gottlieb, Joanne Doroshow, Center for Justice and Democracy, Briefing Book: Medical Malpractice by the Numbers, 2022, https://centerjd.org/content/briefing-book-medical-malpractice-numbers
