The Medical Malpractice Myth.

The Medical Malpractice Myth

Tom Baker

University of Chicago Press 

www.press.uchicago.edu

208 pp., $22.50

If you are a trial lawyer involved in medical malpractice litigation--whether you are actively lobbying against malpractice "reforms," debating your doctor during your annual physical, or simply defending what you do at a cocktail party--you should read Tom Baker's book The Medical Malpractice Myth.

Baker, a professor at the University of Connecticut School of Law and director of its Insurance Law Center, is the son and son-in-law of doctors. When he took on the task of investigating the medical malpractice insurance crisis, he almost certainly did not set out to write a book with such a title. In the book, Baker studies the history, statistics, economics, politics, and rhetoric of the medical malpractice debate. He writes a clear, concise summary of perceptions and reality, what is true and not true. It's a highly readable, informative book.

Baker disputes some of the arguments trial lawyers have advanced about the root causes of the malpractice crisis--namely, greedy insurance company executives and mismanaged investments. The rejection of that argument bolsters Baker's credibility. He clearly has no agenda. He is not pro-trial-lawyer or anti-doctor. He is an academic who became interested in the problem, dug into the research and arguments, and analyzed both sides. The result is a cogent explanation and some possible solutions.

Baker examines the historical trends and explains the cyclical nature of the insurance industry. The "crisis," if one exists, is certainly nothing new, and almost as certainly is not a product of trial lawyers, injured patients, or the jury system, he writes.

Baker concludes that problems do exist, but they are not the ones pitched by the medical societies or the Bush administration. The primary problem is that too much malpractice occurs; he refers to a malpractice "epidemic." He also concludes that not enough victims sue after malpractice occurs.

Malpractice lawsuits serve many purposes, Baker writes, all consistent with good public policy. In a chapter titled "Why We Need Medical Malpractice Lawsuits," he argues that lawsuits brought the epidemic to light and that they improve patient safety by making medical mistakes more visible and patient safety a higher priority.

"Medical malpractice lawsuits promote traditional American values like access to justice, personal responsibility, and freedom from intrusive government regulation," he writes. Baker does not reach those conclusions easily, however. They are based on an exhaustive re view of relevant studies and the statistics they have generated.

The statistics he cites are powerful, based on studies that are either independent or, in some cases, funded by the medical community. According to one frequently cited Institute of Medicine study, nearly 100,000 people die each year from malpractice. Only a fraction of victims actually file claims, and therefore many are never compensated for their losses.

Baker uses examples to support his conclusion that malpractice lawsuits identify dangerous conditions and prompt hospitals and government agencies to act to improve patient safety. In one case, a large city hospital was forced to contend with outbreaks of hospital-acquired infections due largely to poor sanitation practices. In another, an impaired anesthesiologist on drugs was finally exposed after causing two women to lapse into irreversible comas. In both cases, the doctor had disconnected the alarms that would have alerted him to the patients' loss of oxygen.

Baker acknowledges that doctors in some specialties, like obstetrics and gynecology, have legitimate concerns about liability and have suffered as a result of increased premiums and decreased reimbursements. He also acknowledges that the insurance cycle places a large financial burden on doctors--a burden that is disproportionate to the fee they are allowed to pass on to patients.

He proposes a model statute with some logical and fair solutions to those problems. He advocates an "enterprise insurance" system, in which hospitals would provide insurance, while doctors would bear the burden of liability. The verdict or judgment would be against the doctors and would be reported to state and federal authorities, like the National Practitioner Data Bank. In other words, doctors would not be agents or employees of the hospital, but independent and accountable for their errors.

Because hospitals would pay for doctors' insurance, hospitals would have a more powerful incentive to design systems that ensure that doctors make fewer mistakes. Enterprise insurance would allow hospitals to spread liability insurance costs across both high-risk doctors (obstetricians and neurosurgeons) and their low-risk colleagues (anesthesiologists and dermatologists). Under such an arrangement, the burden of suddenly higher premiums would not fall on any one specialty.

Baker recognizes that this solution would require a major change in the health care and insurance industries. His proposal may simply inspire more discussion based on facts and less argument based on emotions.

At the beginning of The Medical Malpractice Myth, Baker tells us,</p>

<pre> This is a book with a mission. My goal is reframing the public discussion about medical malpractice lawsuits, just as the public health research reframed the public discussion about medical malpractice itself. I want to shine so much sunlight on the medical

malpractice myth that doctors and other people who care about health care cannot help but see what a misleading picture it presents. </pre> <p>Assuming the players in the debate read this book, it will certainly go a long way toward accomplishing that mission.

KATHLEEN L. NASTRI is a partner in Koskoff, Koskoff & Bieder in Bridgeport, Connecticut.