Medical Malpractice and the Public's Imagination
By William M. Sage, MD, JD
America’s medical malpractice system is one part Rip van Winkle and one part Anna Nicole Smith.
It’s Rip van Winkle because malpractice policy usually lies dormant for a decade or more until it hears the clamor of a liability insurance crisis. Once awakened, moreover, it typically acts as if the health care system has not changed since its prior revival. Why Anna Nichole Smith? Because malpractice liability is a train wreck that Americans can’t help watching. Once captivated, the public imbues malpractice with importance to the U.S. health care system far beyond that indicated by objective criteria.
Malpractice experts and the public agree that medical liability is broken, but cite different causes and effects. Experts often explain that tort liability is a predictable social response to burgeoning health care technology: As expectations of success rise, failures become more apparent, and the cost of additional treatment grows. But they readily concede that too many medical errors are undeterred by malpractice risk, that too many injured patients receive no compensation, that the litigation process is unconscionably miserable and expensive for all concerned, and that liability insurance markets are badly organized and unnecessarily volatile.
These balanced assertions cannot compete for public attention with the dueling political narratives of “tort reform.” One set of advocates tells a story of predatory lawyers who drive honest doctors from practice and bleed the health care system of hundreds of billions of dollars each year in “defensive medicine.” The other offers tales of profiteering insurance companies slapping physicians with exorbitant premiums and then turning their backs on piteous victims and grieving widows. What would feel more satisfying, both sides ask voters and their elected representatives: reorganizing a complex system or punishing a greedy villain?
The patient safety movement might help overcome this impasse. Well-publicized revelations of widespread medical error force the medical profession to examine its own practices as well as those of its legal opponents. Attention to clinical safety moves the redress of injury farther from the courtroom and closer to the bedside, where it can happen more quickly, less expensively, and more accessibly for patients.
Being creative about preventing errors and being honest about disclosing them is a self-help measure that needs no endorsement by courts or legislatures. These professional commitments also restore a modicum of control to physicians, whose distress over malpractice compounds a general sense of lost authority as their judgment is questioned, their prices are challenged, and their documentation is criticized by those who seek their services and pay their bills in a $2 trillion health care system.
Still, comprehensive malpractice reform remains unlikely. The established imagery of malpractice is too vivid, and the political combatants are too entrenched. Unfortunately, this impasse may jeopardize not only improvements to the malpractice system, but also health care reform in general.
Thinking about reform in collective termsâ€”healthy communities and a healthy nationâ€”is critical to improving our health care system. As long as medical malpractice holds our attention, however, we will only be able to envision our health care system one physician and one patient at a time.
William M. Sage, MD, JD, is the vice provost for Health Affairs and James R. Dougherty Chair for Faculty Excellence at the University of Texas, Austin.