The Medical Malpractice Insurance Crisis, Again

The real crisis presented by the breakdown of our medical malpractice litigation and insurance system is that the wrong people are getting most of the money. Often, the people who sue have substantial injuries but dubious liability claims, while many people with legitimate claims can't even assert them. As a result, many doctors are angry and resentful toward patients who bring frivolous claims, and many patients with legitimate but unredressed grievances are disgusted by their lack of access to justice. The sad result is a breakdown in confidence and trust between doctor and patient. And that produces a perception of poor quality health care, as well as a dysfunctional community.

If you want to understand what this latest medical malpractice insurance crisis is about, a good way to start would be to dissect that phrase: "medical malpractice insurance crisis," because what we are dealing with is, in fact, three separate but related developments.

The medical component is entirely a function of expectations. In the last sixty years, the public's expectations of its health care system have risen dramatically, thanks to advances in medical science and the longer life expectancy and better quality of life they have delivered. But that expectation generates great anger when the medical profession fails to deliver. For example, forty years ago, virtually no one sued a neurosurgeon. If you were going to a neurosurgeon, you were almost certainly going to die, and if there was anything the neurosurgeon could do to defer that result, you were enormously grateful. As the technology and capability of neuro-surgery developed, expectations of the specialty grew as well.

Neurosurgeons at least have the advantage of treating very sick patients, individuals who fully comprehend the gravity of their circumstances. Contrast this with the lot of the obstetrician, whose patients have the same expectation: a happy and healthy baby. They experience the physician's failure to meet that expectation with the greatest imaginable disappointment. It is the distance that the obstetric malpractice plaintiff travels from the "reasonable expectation" of a perfect outcome to the devastating fact of a neurologically impaired newborn that fuels the intensity of "brain damaged baby" lawsuits. In this regard, doctors are victims of their own success and their failure, or inability, to communicate to their patients that they can't guarantee a good outcome in every case.

The malpractice part of the malpractice insurance crisis is rooted in a flawed system for adjudicating medical negligence claims for which no one is currently held responsible. For any malpractice claim to move through the courts, be it meritorious or frivolous, the active support of three players is required. First, the potential medical malpractice plaintiff must find a lawyer. Because of the expense of prosecuting medical malpractice cases, the typical method for finding a lawyer is the lure of the contingent fee system, whereby plaintiff 's lawyers, who are professional gamblers, agree to prosecute an action on behalf of a plaintiff and charge no fee unless the action ends in a financial award. Say what you will about this system, without it no one other than the wealthiest members of our society could use the courts to adjudicate civil grievances.

Advocates of the current system argue that the contingent fee system helps discourage cases that lack merit. If plaintiffs' attorneys must invest substantial amounts of time and money in a case, they have a strong motivation to accept only meritorious cases likely to produce a significant recovery. But this is only partly true. Although rational self-interest filters out many potential legal actions, the criteria typically applied by the plaintiffs' counsel to case selection favor less meritorious cases with great economic value over more meritorious claims with limited compensable injury.

The second critical player in the medical malpractice litigation process is the plaintiff 's medical expert. Medical malpractice cases are negligence actions in which the plaintiff alleges an injury that results from a breach of the standards of care accepted in the medical community. A breach of the standard of care can be proven only by the testimony of an expert licensed in the field of...