Unfortunately, there is now a new malpractice crisis, and although its origins are similar – namely, another significant bump in litigation with even higher awards – it is different from the two previous crises and far worse. The new crisis involves both problems of coverage and soaring premiums, but more important, it is occurring during the "perfect storm" that is wracking the healthcare system. Indeed, it is one of its causes. Secondary to a number of factors, some of which I have mentioned, the increased costs the crisis is engendering cannot be passed on. Beleaguered physicians are weathering the full force of the gale, adding immeasurably to their dissatisfaction and disillusionment. Consequently, it is affecting access to healthcare in certain areas, with doctors moving or leaving practice and various high-risk services being curtailed. Beyond the economic woes, being sued is a terrible experience for a doctor, as Crisis clearly illustrates, even if the doctor is ultimately vindicated, which most are.

Since this new medical malpractice crisis is occurring despite a number of states having passed elements of tort reform, and because new information about the extent of iatrogenic injury has surfaced, I have changed my position. I no longer see tort reform as the solution. Also, I no longer myopically see the problem as a confrontation between the "good guys" and the "bad guys," with altruistic doctors pitted against greedy lawyers. As the storyline of Crisis suggests, I'm now convinced there's blame on both sides of the equation, with good and bad in both camps such that I am embarrassed about my original, naive assessment. Global issues of patient safety and appropriate compensation for all patients who suffer adverse outcomes are more important than assigning blame and more important than providing windfall settlements in a kind of lawsuit lottery for a few patients. There are better ways of dealing with the problem, and the public should demand it over the objections of the current shareholders: organized medicine and the personal-injury malpractice trial bar.

The fact is that the tort approach to medical malpractice is not working. Studies have shown that in the current system the vast majority of claims are not meritorious, the vast majority of cases that are meritorious are not filed, and payments are often made with little evidence of substandard care. Such an outcome is hardly a commendable record. In short, the present method of dealing with malpractice is failing in its supposed dual goals of compensating patients with adverse outcomes and providing effective deterrence to medical negligence. On the positive side, there is plenty of money available for a better stratagem with malpractice premiums doctors and hospitals are forced to pay. Currently, very little of this money ends up in the hands of patients, and those who do get some all too frequently don't get it until far down the road after a bitter struggle. We need a system that takes the money and gives it to injured patients without delay while, at the same time, openly investigates the reason for the injury to ensure that it doesn't happen to the next patient. There have been many suggestions for such a system, ranging from a kind of no-fault insurance to something akin to workers' compensation to methods of arbitration/mediation. The time for an alternative approach is now.

For Further Reading

Brennan, T. A. 2002. "Luxury Primary Care-Market Innovation or Threat to Access." NEJM 346:1165-68.

Brennan et al. 1991. "Incidence of Adverse Events and Negligence in Hospitalized Patients: Results of Harvard Medical Practice Study." NEJM 324:370-76.

Brennan et al. 1996. "Relation Between Negligent Adverse Events and the Outcomes of Medical Malpractice Litigation." NEJM 335:1963-67.

Kassirer, J. P. 1998. "Doctor Discontent." NEJM 348:1543-45.

Melo et al. 2003. "The New Medical Malpractice Crisis." NEJM 348:2281-84.

Studdert et al. 2004. "Medical Malpractice." NEJM 350:283-92. Zipkin, A. "The Concierge Doctor Is Available (At a Price). NYT. 31 July 2005.

About Robin Cook

A bestselling author for many years, since early books such as Coma were the basis for successful films. Originally residing and practising in Boston, he now lives and works in Florida.