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Slaying Dragons: Malpractice Beyond MythThe Medical Malpractice Myth by Tom Baker (Chicago: University of Chicago Press, 2005), 202 pp., $22.50
Mythology implicates cosmic battles between good and evil. What then is the medical malpractice myth? According to Tom Baker, a professor at the University of Connecticut School of Law, the myth is that white-coated doctors are being driven out of business by dark-suited trial lawyers. The myth is that the explosion in malpractice insurance premiums is caused by an explosion in litigation. The myth is that injured patients are greedy opportunists who sue at the drop of a hat. These myths, in turn, support a range of real-world tort reforms: caps on damages, reductions in the time available to initiate a lawsuit, additional procedural hurdles before filing a claim, and limitations on plaintiffs’ attorneys’ fees. The readers of this journal might have little patience for such fairy tales. The underlying issues of health care quality and patient safety are far more complicated than lobbyists for either the American Medical Association or the trial lawyers’ associations would have us believe. It hardly registers as news anymore to state that traditional "tort reform" measures will do little to address health care costs, increase access, or improve patient safety. Debates over tort reform are not only a waste of time, they are dangerous distractions from real problems and possible solutions. Unfortunately, the policy agenda is being dictated by the myth makers. Baker devotes substantial attention to President George W. Bush’s 5 January 2005 speech in Collinsville, Illinois. The president’s statement echoes almost verbatim Baker’s myths: What’s happening all across this country is that lawyers are filing baseless suits against hospitals and doctors. That’s just a plain fact. And they’re doing it for a simple reason. They know the medical liability system is tilted in their favor. Jury awards in medical liability cases have skyrocketed in recent years. That means every claim filed by a personal-injury lawyer brings the chance of a huge payoff or a profitable settlement out of court (p. 13). The president proceeds to point to malpractice litigation as a principal cause for increasing health care costs and for barriers to access. More myths. The majority of Baker’s book is a careful and largely dispassionate refutation of critical aspects of the malpractice myth. He explains how the periodic malpractice insurance crises are driven by problems in the insurance market itself and are not due to fluctuations in the number of malpractice suits or increases in jury awards. He argues that the threat of malpractice does not lead to serious problems of defensive medicine, particularly in a world of managed care. Baker notes that the majority of patients who are victims of negligence, instead of being overly litigious, do not sue. He also argues that courts are relatively effective in assessing the merits of malpractice claims. Baker is perhaps most open to criticism in his treatment of medical errors. Chapter 2 is titled "We Have an Epidemic of Medical Malpractice, Not Malpractice Lawsuits." What follows is a discussion of the literature culminating in the publication of the 1999 Institute . of Medicine report To Err Is Human. The underlying point is not in dispute. Whatever we call it, there are serious problems of patient safety and health care quality. What we call it, however—whether it be errors, mistakes, adverse events, negligence, or malpractice—does matter. Baker acknowledges the taxonomy difficulties (pp. 34–35) but collapses down to a shorthand of "malpractice." From this move comes the oft-repeated statement, which takes on an important rhetorical flair, that there is a greater problem of medical malpractice than malpractice lawsuits. Labels are important. What we call a problem has direct implications for how we attempt to solve it. When Baker labels the problem "malpractice," this naturally suggests torts and the judicial system as the solution. Alternatively, the label of "errors" or "safety" or "adverse events" might lead in stronger regulatory or self-regulatory directions. Moreover, collapsing down to a single label, as opposed to a more nuanced taxonomy, suggests that a monolithic rather than a differentiated policy solution is appropriate. A better frame is suggested by Michelle Mello and colleagues in their call for "regulatory pluralism," where torts operate in concert with a range of other interventions to improve patient safety.1 Under this approach, the very definition of "negligence" might be reconceived to channel only those types of problems into the legal system that courts have a comparative advantage in addressing. Malpractice cases ask courts to do difficult things. Defining the appropriate standard of medical care and establishing causation are inherently complicated tasks, which might or might not be best suited to an adversarial legal process. Baker is certainly not an apologist for the current legal system. In Chapter 8, he outlines a number of far-reaching (real) tort reforms. Baker argues for mandatory disclosure requirements, state regulatory assessments of the disclosed data, provider apologies to patients that would serve as admissions of liability, adopting strong incentives to encourage early settlement, and "enterprise insurance" that would shift the malpractice insurance burden from individual physicians to hospitals and other health care institutions. This is not your father’s Oldsmobile. Baker further advocates a methodology of "evidence-based" tort reforms. From this perspective, he would welcome an open debate about the future role of malpractice in the health care setting and its proper relationship to the patient safety movement. Baker’s main point is that such debates are not possible while the policy agenda is driven by myth makers and their malpractice myths. The book’s principal task, therefore, is to clear away the underbrush to permit a more sophisticated policy discussion about the future of malpractice in the health care system. If this is the primary objective, however, we are left with difficult, lingering questions: Why are these myths so strong, and why do they persist despite substantial contradictory evidence? Functionalist theories of mythology stress the role of myths in creating order and serving as charters for social action. The world of most health care practitioners has been turned upside down in the past thirty years. Health care has moved from an individual-based unit of production where the physician was king, to a system-based unit of production where the physician is increasingly just one of many different inputs. People often return to foundation myths when their worldviews are under attack. Tellingly, survey evidence suggests that most physicians do in fact believe that malpractice lawsuits are a serious cause of their problems. Ironically, surveys also suggest that physicians believe that the threat of being sued is much higher than it actually is. Human beings have extraordinary capacities for denial and self-deception. Deception that serves self-interest is particularly difficult to expunge. The logic of myth is the logic of dreams, not of waking consciousness. Tom Baker is trying to slay dragons; he might need more than just the truth on his side to succeed.
Editor's Notes Peter Hammer (phammer{at}wayne.edu) is a professor of law at Wayne State University Law School in Detroit. He is an economist as well as a lawyer, specializing in the study of changes in health care markets from an institutional economic perspective. NOTE
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