Surmounting Myths and Mindsets in Medical Malpractice

edical malpractice is in the news, again. The early 2000s have seen the third upheaval in medical liability insurance over the last three decades. States have as always been the first responders, but liability reform has also become a high-profile federal issue. Physicians, their liability insurers, and their allies promote state and federal tort reform to curb lawsuits. Their key goal is a “cap” of $250,000 on awards for pain and suffering, as pioneered in California in 1975. In opposition, plaintiffs’ attorneys and their allies promote an unlimited “right to sue.” In many contentious debates, policymakers confidently assume that the truth lies somewhere between the clashing extremes. Not in medical malpractice. Its key partisans are defendant doctors and plaintiff attorneys, and even groups claiming to represent the broader public sound very much like the partisans themselves. Moreover, the sometimes apocalyptic rhetoric masks the underlying reality that proponents and opponents of tort reform both accept today’s system—reformers just want somewhat less of it. The routinized debate sounds much the same as a generation ago, and neither side has learned enough from recent advances in patient safety. Both sides spin myths from selected anecdotes or factoids and tout non–peer reviewed “studies” that lack reliable methodology. Minds are very set, indeed. This brief first highlights the top five myths on each side. Most contain elements of truth but also substantial exaggeration and misdirection. It next presents the top five real problems, from the public perspective. It is the public’s medical injuries that the lawsuit and liability insurance “system” prevents or compensates . . . or does not. And it is the public that ultimately bears the costs. The brief ends with suggestions for new, constructive ways to provide compensation and protect patients. Citations of literature appear at the end of this brief.