Medical malpractice

Medical malpractice presents challenges for policy makers, physician/provider purchasers of insurance, and companies offering professional liability insurance covering medical providers. Medical malpractice is buffeted by three distinct, uncoordinated, policy drivers: the health care system, the insurance system, and the legal system. While cases of medical malpractice arise within the health care system, determinations of fault and the assessment of financial damages are made through the tort system; most of the direct costs of the system to health care providers are experienced through the insurance system, which distributes costs across the pool of insured providers. Because of the complexity of the interactions between these three systems, policy changes in one area may have unanticipated consequences in another. For example, quality improvements in the health care system could result in fewer instances of medical malpractice, but if other circumstances change in the tort or insurance systems, such as an increase in the cost of capital for insurance companies or an increase in amounts awarded in the tort system for medical malpractice claims, the premiums paid by providers for medical malpractice liability insurance still might increase.

Depending on how one counts, the nation is perceived by some to be in the midst of its third modern medical malpractice crisis in the past 225 years. The first medical malpractice crisis occurred from 1835 through 1865, and that crisis confronted many of the same issues raised in the more recent crises, including but not limited to the number of lawsuits, the proper role of expert testimony, a lack of trust in lay juries, the perception that plaintiffs’ attorneys can sway the emotions of jurors, the need for specialized judges knowledgeable in medicine, the size of jury awards, the tendency to sue those with “deep pockets,” the appropriate standard of care, the relationship between malpractice suits and quality improvement,