Physician responses to the malpractice crisis: from defense to offense.

Allen Kachalia, Niteesh K. Choudh y, and David M. Studdert M edical science brings innovations in patient care at an astounding pace today new chemotherapeutic agents, coated stents, and minimally invasive surgery are just few recent examples. For physicians, though, the specter of malpractice liability can overshadow the marvel of practicing in this era. Many physicians are working in a volatile liability environment; they face spiraling costs for malpractice insurance, have difficulties purchasing liability coverage at any price, and see record payouts in a growing number of claims against their colleagues.’ The American Medical Association (AMA) has declared that at least 20 states are currently in a malpractice “crisis,” with another 24 states showing early signs of an impending crisis.2 There have been two comparable periods of instability in the last thirty years,3 but these predecessor crises differ from the current one in important ways. First, while physicians mainly experienced dwindling options for obtaining coverage in the mid-1970s (i.e., availability) and exorbitant prices in the mid-1980s (i.e., affordability), the current crisis appears to have elements of both availability and afTordability.4 Second, in this time of increasing attention to patient safety and medical error, the public is more wary of reform that may protect providers from paying for injurious mistakes.5 Third, reports show a growing physician discontent with practice.6 A fourth distinction between the current and previous crises is beginning to receive increasing attention in media reports: some physicians are taking matters into their own hands and mounting aggressive responses in order to reduce malpractice risk and costs. TTTTTTTTTTi t i onal physician responses to liability concerns include advocacy and lobbying, relocation to areas with lower liability risk, curtailment of high-risk services, practice closures, and countersuits against frivolous claimants. There appears to be continuing interest among physicians in such responses. However, several novel reactions are stirring controversy; they include practicing without securing adequate malpractice cov-