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CONTRACTING OUT OF THE MEDICAL MALPRACTICE CRISIS* RICHARD A. EPSTEINt The professional liability of the physicians and surgeons for medical malpractice has in recent years become an issue of pressing public importance . For many years the law of medical malpractice was a body of law of consuming interest only to those who practiced in the area. While the possibility of a malpractice action always existed, the threat of suit in any particular case was remote and that of liability was even more so. Malpractice was not, to be sure, a subject to be ignored, but by the same token it was not a growth industry. All of this, of course, has now changed. Today it is commonplace to read and speak about the "crisis" in medical malpractice. While the term "crisis" is surely one of the most overused in the modern lexicon, it is easy to document the vast increase in concern, not to say, anxiety, which the entire subject conjures up in the minds of physicians, lawyers, legislators , and, of course, ordinary citizens. The subject is one that is now topical, and with the division of opinion on the subject, it is likely to remain so for some time to come. It is useful therefore to give some account, popular, but (hopefully) technically accurate, of the current situation. The problems in the area of medical malpractice invite study from three perspectives. First we should ask, Where have we come from? second, Where are we now? and third, What is to be done? In order to achieve that goal I shall trace what I regard to be (some of ) the more important legal developments in the area, making clear—perhaps in somewhat overstated terms—the conflict between the traditional and modern views of the subject. Next, I shall evaluate the effects of the recent legal changes, and finally I shall argue that the best solution to the current problem rests upon a far greater willingness of courts and legislatures to permit private agreements to govern the rights and duties of physicians and patients. *Many of the issues discussed in this article are covered in greater detail in Epstein, Medical Malpractice: The Casefor Contract, 1 Am. Bar Found. Res. J. 87 (1976). !Professor of Law, University of Chicago. 228 I Richard A. Epstein ¦ Medical Malpractice Crisis The Quiet Revolution in Medical Malpractice Before turning to the detailed examination of the plaintiff 's cause of action for medical malpractice, it is necessary to say a word about the judicial attitudes which guide the development in the entire area, for only when they are understood is it possible to appreciate the full extent of the recent legal changes. The traditional view of medical malpractice was one of cautious intervention, borne of deference toward physicians. The reasons for that position are not difficult to understand, even today. The practice of medicine is both highly technical and highly uncertain. Difficult cases may well produce the worst possible results even with the best possible treatment, as it is so difficult to predict how the human body, particularly in a diseased or injured condition, will respond to treatment. It may be possible to demand of the physician that he use his best efforts in any particular case, but difficult to reduce that desire to any particular standard that can be administered by judges and juries alike. The attitude ofjudicial deference in effect says that there is little, if anything, to be gained by second-guessing difficult cases after the fact. The patient must place his trust in his physician and not in the courts, which are slow to substitute their judgment for his. The more modern attitude on the subject starts from a very different point of view. There the initial bias is, as in so many areas of human endeavor today, in favor of greater public scrutiny and control of the activities of medical personnel. There is a concern that a physician will use his position to prejudice the patient and a sense that the court must intervene in order to redress the imbalance between patient and physician created by a vast range of economic and social forces beyond individual control. Deference is a form of...


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