Some Social Aspects of the Medical Malpractice Dilemma

Abstract

Current medical malpractice problems are symptomatic of deeper issues in the practice of medicine, in our system of social insurance, and in the fabric of our society. The noisy manifestations of the malpractice debate-complaints about staggering increases in the insurance premiums physicians pay in certain vulnerable specialties' or about contingent fees of attorneys2--are perhaps some of the least important aspects. As is true of many other problems, the symptoms are more easily treated than the basic malady, but symptomatic treatment at best buys time to examine, to reflect, and to consider more basic long-term approaches. A great deal has been written about malpractice, but pertinent data to answer many obvious questions are not readily available. Thus, it becomes difficult to distinguish the speculative but plausible hypothesis from the true state of affairs. This Article can do little to remedy this basic shortcoming, since I have no new data to clarify issues where they have become obfuscated. My objectives, however, are to define the basic issues underlying the malpractice dilemma, to clarify some common concepts that are amenable to research, and to suggest certain hypotheses that deserve examination. Medical malpractice litigation is said to perform two important functions: (1) to deter physicians from lax, careless, or negligent behavior;3 and (2) to compensate patients injured as a consequence of the negligence of the hospital, physician, or ancillary health care