Malpractice suits are keeping us safe from cancer? by mattsteinglass
June 22, 2009, 11:22 pm
Filed under: Health

It is disturbing to hear that a Veterans Health Administration hospital in Philadelphia had a “rogue” cancer unit that made serious mistakes in treatment and covered them up. But I don’t really understand Megan McArdle’s argument that this is “one of the things that can only happen at the VA”:

Not because hospitals are above covering up malpractice, or because doctors don’t protect other doctors, but because any private hospital would have been terrified of getting sued.  The VA is very hard to sue because of sovereign immunity.

It’s true that because of the doctrine of sovereign immunity, the VA and other federal government branches can only be sued via the Federal Tort Claims Act, which makes it harder than suing private doctors. (Not impossible — just harder. Claims — like the one Megan cites — that it’s extremely difficult to sue the VHA mainly come from lawyers who specialize in suing the VHA, which…well, there you go.) But if sovereign immunity is the problem, then there’s an easy solution: spin the VHA off as an entity separate from the Federal government. That wouldn’t compromise any of the attributes that allow the VHA to outperform private healthcare in the US; it would just eliminate the wholly unrelated issue of sovereign immunity.

In fact, almost no other country in the world even has a US-style doctrine of sovereign immunity, yet the government-run parts of other countries’ health systems seem to get along just fine without it. The UK invented sovereign immunity, but like other monarchies, it has gradually restricted it such that it only applies to the person of the Queen; it’s perfectly legal to sue the NHS. Yes, one might argue, but it’s much harder to sue for malpractice in the UK and elsewhere in Europe for other legal reasons. Fine; but what exactly are we saying here? Are we trying to imply that France, Germany, Sweden, the Netherlands, and Japan are full of doctors merrily committing malpractice and getting away with it? Then how do we explain the fact that their health outcomes, like the VHA’s, are all just as good as the US’s overall health outcomes or better?

If Megan is just arguing that we should remove the VHA from the protection of sovereign immunity, that seems like a perfectly valid idea to me. But if she’s saying that the VHA is a kind of hothouse flower of medicine that can only deliver the best care in America because it’s under the federal government’s protection against malpractice suits, that claim makes no sense to me.

5 Comments so far
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“but like other monarchies, it has gradually restricted it such that it only applies to the person of the Queen”

Even this is putting it a bit strongly. in the unlikely event that the Queen committed negligence in her personal capacity and permission to sue was not forthcoming, the court would have to declare the refusal incompatible with the claimant’s rights under Art. 13 of the European Convention of Human Rights (i.e., the right to an effective remedy). The UK could then be held liable for the refusal before the Strasbourg court.

On the broader topic of medical negligence liability in the United States, I would have to say that that three particular factors distinguish cases there from cases elsewhere:

1) Poor time-management by the courts, leading to the endless stretching out of the cases in an effort to get plaintiffs to settle.

2) Triple damages, these fund a far greater access to law (good) and encourage law suits (depends).

3) Class action lawsuits, granting easily accessed remedies to large numbers of people.

Given these differences, I’m not so sure how easy it is to simply compare the situation with the NHS to that of the VHA in the US. All the same, it’s highly odd that McArdle doesn’t follow her argument through to its natural conclusion: if the VHA can only deliver great medical care because it doesn’t have to spend so much money on legal insurance, then maybe the service provided by other companies could also be improved by making it harder to sue.

Comment by FOARP

FOARP – I feel you missed the point – the VA is harder to sue, therefore harder to hold accountable, regardless of its performance. And there’s no way to make a logical jump from ‘the VA has good care and Sovereign Immunity’ to ‘the VA has good care because of Sovereign Immunity’. Correlation, causation, etc.

Matt – I can’t speak for her, but I definitely read her article as an argument against Sovereign Immunity for the VA.

Comment by jb

@JB – But it is McArdle who is – one has to assume – drawing a causal link, otherwise her argument is, as Matt points out, nothing to do with the VA and everything to do with sovereign immunity – in which case why go after the VA?

Comment by FOARP

I suppose I should also say that I read this in light of her long-standing opposition to so-called ‘socialised’ medical care. If I was overly quick to jump to that conclusion, I don’t think i can have been the only one.

Comment by FOARP

@FOARP – perhaps she mentions the VA because if the article simply said “Sovereign Immunity is bad”, it would lack punch.

Rereading the article, I think she is saying ‘you have to take the bad with the good with a socialized system with Sovereign Immunity’. Maybe she is more disturbed by the bad things that can happen under S.I. than you are; much like someone might be more afraid of tarantulas than you are.

Comment by jb

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