Dialogue With A Neurosurgeon: Toward A Dépeçage Approach To Achieve Tort Reform And Preserve Corrective Justice In Medical Malpractice Cases

Abstract

Doctors are taking their frustrations about the costs of medical malpractice insurance premiums to the street; striking and even leaving certain states where premiums are higher have been staples of the news in the last year. Politicians are responding by shifting the blame to the “tort” system, which they characterize as dominated by “greedy” trial lawyers (with the implicit accusation that the lawyers are bringing unfounded claims against “good” doctors) and “runaway” juries (with the implicit assertion that juries render plaintiffs’ verdicts in unfounded cases and give away the insurer’s money with abandon through unjustifiably generous damages awards). The “bad actor” in the shared visions of many doctors and politicians is the civil legal system itself—and the “reforms” that are being touted (such as damages caps) are blunt instruments designed, it seems, to disable the ability of the legal system to adjudicate medical malpractice claims. To the extent that the civil legal system is a contributing factor to medical malpractice insurance premiums (an important topic beyond our ken here), the problem cannot be addressed in so sweeping a fashion. There are other key interests involved—principles of law, in the sense described by Ronald Dworkin, upon which the rules of medical malpractice litigation are based. Those principles of law, including the principle of corrective justice, will be sacrificed if such heavy handed measures are adopted. The real problem, however, can be viewed as a much more subtle one, requiring finer tools of analysis to diagnose and repair. The level of subtlety is deep—as deep as the elements of the traditional prima facie case of medical malpractice, and the standard of care in particular—and requires more sophisticated analytic constructs to understand, analyze, and ultimately reform. I hope to develop some of those analytic tools in this article.