Medical Malpractice Litigation: How It Works, Why Tort Reform Hasn’t Helped
Over the last year especially, public policy makers have been reminded continually about their obligation to “follow the science.” In crafting legislation and regulation, other considerations often make it difficult to adhere to this admonition. One arena in which different participants’ conflicting emotional, political, and economic interests intensely, powerfully exacerbate this difficulty is the resolution of legal claims averring that medical malpractice has caused patient injuries. Useful, accessible data regarding the actual operation of the medical malpractice claims system in the U.S. is limited; successful projects examining and interpreting the available data carefully and objectively in order to turn it into credible information and then action are rare.
Medical Malpractice Litigation endeavors to address some of the scientific knowledge deficiencies hampering fair and effective lawmaking on this front. Through review of the scant empirical literature, deep analyses of public albeit incomplete data sets, and informal interviews with key informants, an economist (Paik) and four respected law professors with expertise in quantitative social science research confront and challenge a number of longstanding, semi-sacred myths about medical malpractice propounded in lawmaking forums by the plaintiffs’ bar, patients’ rights advocates, health-care professionals and their trade associations, and the insurance defense bar. Various factual conclusions presented here will be displeasing to combatants on all sides of the medical malpractice policy battle, but informative to lawmakers who should be considering their constituents’ emotionally, politically, and economically based demands in light of research-revealed “scientific” realities that often contradict extravagant, unsupported partisan advocacy.
Proponents of tort reform will be disappointed by what Black and colleagues have to say regarding (among other things) the dubious existence of periodic medical malpractice litigation crises since the 1970s (as opposed to cyclical business planning-induced problems with liability insurance affordability). They will be most upset with the authors’ verdict that state-enacted changes to tort law, particularly in the form of damage caps on total, noneconomic, or punitive recovery, have been mainly ineffective if not counterproductive in achieving the central promised goal of improving access to and affordability of good quality health care for the American population.
On the other hand, defenders of the current tort regime in all its jots and tittles surely will take issue with the book’s characterization of the legal status quo’s vastly inadequate, inefficient impact on the twin asserted policy goals: namely, justice, in the form of adequate financial compensation for innocent injured victims of professional wrongdoing, and quality assurance/patient safety resulting from deterrence of substandard medical practice. The authors indict the current malpractice system as inhumanely “slow, expensive, and noisy.”
Medical Malpractice Litigation is one impressive, well-referenced project done by one set of scholars with partial data available at one point in time. The book certainly (we should hope) will not be the last word on this subject, as future scholars revisit, update, and expand upon this groundbreaking but exploratory piece of work. The book’s subtitle, Why Tort Reform Hasn’t Helped, is true because legislative and regulatory prescriptions so far have been reactions to purported but unproven, and frequently wrong, assumptions peddled by involved adversaries. No wonder so-called tort reform has not produced a silver bullet for society. Perhaps legislators and regulators armed with better knowledge can do a more scientific job when they have their next, inevitable opportunity to address the problem of preventing and resolving medically related patient injuries.