Philadelphia Reflections

Malpractice Epidemic?

The best way to avoid malpractice suits is to avoid committing malpractice in the first place

The Tort Bar

Plaintiff lawyers, responding to increasingly effective attacks by the medical profession, retort the best way to avoid malpractice suits is to avoid committing malpractice in the first place. That's more jibe than a serious argument. But if it seriously intends the implication that increased volumes of medical malpractice cases signify increased levels of incompetence, that is unlikely to be true. Medical school applications have become almost incredibly selective for talent (sometimes reaching a level of 12,000 applicants for 200 places), the duration of postgraduate medical training is regularly protracted by several years after the four years of medical school, and legislation is actually being considered to compel these over-achieving trainees to work shorter hours so there can be no legitimate excuses for performance that isn't absolutely tip-top. It seems much more likely that this intensely competitive training environment has pushed medical standards to overly exacting levels of constant self-criticism, which is cited by censorious expert witnesses to imply that only a scoundrel would fail to measure up. In fact, most of the problems grow out of the snide comments of economic competitors, advertising their differing positions in the chain of information transfer.

As far as net effectiveness is concerned, the basic goal for medical care is to prolong human life. Whatever the medical profession has been doing during this alleged epidemic of negligence, people are apparently living longer in spite of it. In 1900, life expectancy at birth in retrospect was forty-seven years. In 2005, it is predicted to be seventy-seven years for infants born today, a gain of thirty years in a century. So to speak, the average person annually lived 16 months when predicted at birth to live only 12, and kept it up every year for a lifetime. During no other century has that ever been true. Despite an alleged malpractice epidemic, remember, allegedly getting worse every year.

So the medical profession takes offense at the surge in malpractice lawsuits, which we feel are unwarranted and ungracious. Congress and the public also need to see that rousing a respected profession to offended self-pity makes it much more difficult for leaders of the medical and legal professions to work together for dispute resolution, continuing quality improvement and effective peer review. The leadership of the medical profession has come to feel that the leadership of the legal profession has neglected its own self-policing duty. In almost every state every year, the number of lawyers disbarred is many fewer than the number of physicians losing their licenses. To imply that the standards for admission to Medicine are lower than the standards of admission to law school is not a statement supported by evidence. Nor is there evidence that self-policing by a conscience-driven profession is less effective than persecution by those who are paid to be censorious. Some research institution is challenged to examine a view widely held by the physician community: the graduates of mainly low-ranked law schools are chiefly responsible for attacking the performance of graduates of the highest-ranking medical schools, so class warfare also infiltrates this issue. These are all perhaps unhelpful rejoinders, and the risk of their further escalation is itself major justification for shifting priority from long-term reform, toward quickly cooling things off.

Originally published: Wednesday, June 21, 2006; most-recently modified: Sunday, July 21, 2019