Suing for Medical Malpractice.

Frank A. Sloan, Penny B. Githens, Ellen Wright Clayton, Gerald B. Hickson, Douglas A. Gentile, and David F. Partlett Univ. of Chicago Press, 5801 South Ellis Ave., Chicago 60637. 276 pp., $37.50.

Reviewed by James Bartimus and Julie C. Frickleton

This book summarizes a comprehensive survey of 187 medical negligence claimants. The authors--legal and medical scholars, health policy formulators, and physicians from a variety of disciplines--analyze many of the misconceptions surrounding this litigation and conclude that the U.S. legal system is alive and well. According to their findings, victims of medical negligence arc not overcompensated and, perhaps more importantly, artificial limitations on the amount of recovery or attorney fees will serve only to restrict victims' rightful access to the legal system.

Well-written, Suing for Medical Malpractice represents the type of collaboration needed to address the thorny issues of negligence. The authors tackled an ambitious task with resounding success. The tone of the book is rational and dispassionate, while never lacking compassion. The challenge of presenting material to a nonmedical audience--including attorneys and makers of public policy--while retailing credibility and usefulness for the specialist was clearly met here.

The acknowledgments section is worth more than a cursory glance. We learn that the Robert Wood Johnson Foundation helped fund the study. The foundation, which is heavily involved with health care issues, may--in our opinion--be a little surprised by the book's findings that victims of medical negligence are not overcompensated and that our legal system for dealing with negligence claims is working well.

The main source of information for the study is a survey that included a detailed questionnaire prepared by Scientific Surveys International, Inc., of Chicago, with the assistance of multidisciplinary experts from Yale University and the Universities of Minnesota, Virginia, and Wisconsin and RAND Corp. representatives. The authors also acknowledge the cooperation of the families of the 187 claimants and identify panels of physicians involved in a retrospective review of the individual claims.

The book's organization and format are outstanding. Each chapter concisely covers the subject matter and with few exceptions is easy to follow. The opening chapter, "Setting the Stage," overviews tort law generally and recounts the myths routinely heard from the system's critics.

The book carefully shows that these myths are based largely on anecdote, emotion, and other inreliable sources of information. The authors note, quite appropriately, that regarding the tort liability system "empirical evidence on its performance is extremely limited." They compare medical negligence claims with other forms of liability and give in-depth analysis to medical negligence cases involving permanent birth injuries and permanent injuries that occurred to adults ages 25 to 54 in the emergency room.

Following a description of the survey process itself, the authors detail the claimants' injuries and their backgrounds and conditions before and after injury. Multidisciplinary efforts to study the claimants themselves are particularly gratifying. All too often, academicians shy away from the hard-to-quantify human elements of injury. These authors do not forget the victims. They also note that claimants as a group are poorly organized and generally hesitant to talk about their painful experiences. If there is a significant flaw in this study, it may be a pre-occupation with whether or not victims may have contributed to their adverse outcome.

The authors dissect the claimants' decision to file an action and examine how this affects their professional relationships with doctors and attorneys. Chapter Four, in discussing the doctor-patient relationship, suggests that "the process of naming, blaming, and claiming begins with a breakdown of the physician-patient relationship."

The importance of communication is a theme that runs throughout the book. The authors note that a significant number of suits are filed because of the victims' need to find out what happened.' Ironically, attorneys were occasionally criticized for not always keeping clients abrcast of the case.

The study also provides a thoughtful review of the most common reasons people filed claims, how they obtained legal representation, and why they took action when they did. This research, which allowed for open-ended responses, again showed that the overwhelming majority of claimants found their lawyers on their own, thus debunking the "ambulance chasing" myth. Even those who did not recover jury verdicts often stated they would file suit again, and most were generally satisfied with their lawyers' work.

Chapter Six covers the physician panel assessments of liability in birth injury cases. Selecting the physician reviewers and describing how they went about their tasks arc discussed. However, this chapter, more than any other, seems subject to criticism because reviewers fall to mention how much weight they gave each piece of evidence considered. Nor are readers given any idea of the discussion that undoubtedly took place among the panel members. What is learned about birth injury liability is that a physician's inaction is almost five times more likely to result in liability than a specific action or error. Absence from the delivery suite, for instance, was very costly if an adverse event occurred.

The authors analyze the appropriate factors to assess the cost of litigation and the adequacy of compensation, though efforts to document the cost of injury rest on estimates and assumptions at best. What did become clear, however, was that many claimants--particularly in the birth injury category--suffered sizable losses due to their permanent injuries and probably were undercompensated. Factors contributing to a higher award are discussed, including the quality of legal representation. The evidence seems to favor use of a specialized lawyer, again raising the issue of certification.

The final chapter attempts to pull research findings together and summarize policy implications regarding claimants, their injuries, their relationship with their lawyers and doctors, and the outcomes of the dispute resolution process. The authors' policy recommendations do not include common "tort reform" measures such as limiting attorney fees and capping monetary awards. Instead, physicians are urged to improve their interpersonal skills, and insurers are encouraged to use underwriting and experience-rated premiums to discourage bad practice styles. Other recommendations are conservative and do not seek to undermine the value of the jury system.

Unlike other writings on medical negligence, this book shows a refreshing lack of partisanship. The authors openly acknowledge the complexity of the issues and successfully resist the temptation to oversimplify. The notion that people sue whenever they have a "less than perfect baby" is flatly rejected as misleading. The consequences of medical negligence are acknowledged as tragic for the affected families.

Also, many claimants are viewed as having important nonpecuniary motives for suing, including learning what went wrong in their case and saving others from negligent medical treatment. The book's conclusions regarding the fairness of jury awards and attorney fees may be unsatisfying to those wanting a quick fix or a scapegoat for their malpractice insurance premiums, but the analysis rings true for those of us who are intimately involved in this process.