CORPORATE CRIME REPORTER
Penn
Law Prof: Med Mal Litigation Explosion a Myth
23 Corporate Crime Reporter 31, August 4, 2009
The medical malpractice litigation explosion is a myth.
Medical malpractice, on the other hand, is real.
That’s the take of Tom Baker.
He’s a professor of law at the University of Pennsylvania Law School.
Baker is the author of The Medical Malpractice Myth (University of Chicago Press, 2005).
The myth?
“That medical liability is at the heart of what is wrong with health care in America,” Baker told Corporate Crime Reporter last week. “And doctors have to practice in fear of being sued at any moment by anybody who had anything that might possibly have gone wrong with them in the course of their medical treatment. And that has contributed to the explosion of health care costs in America.”
Baker says that the myth is widely held by doctors.
This despite extensive research showing that medical malpractice litigation has remain unchanged or declined since the late 1980s while health care costs have doubled from 10 percent of gross domestic product to almost 20 percent now.
Why is the myth so widely held by doctors?
“It’s a combination of professional self-interest on the part of doctors and a larger political and public policy agenda against litigation and lawyers in America,” Baker said.
“And then you have something that is at the heart of medical care – we really don’t know what works and what does not work in health care.”
“And that uncertainty about what works and what doesn’t work leads to a fundamental anxiety. One way that doctors manage the anxiety associated with uncertainty in health care is to name that fear – fear of liability and to then identify the enemy as lawyers and lawsuits.”
“A compounding problem is that doctors feel under siege by insurance companies, managed care, the government and Medicare. And that’s a more difficult problem to address. So, if you can focus your anxiety on lawyers and liability, that gives you something you can do to relieve the anxiety. You can be for tort reform, you can be against lawyers and against malpractice lawsuits.”
Baker says that insurance companies play an important role in perpetuating the myth.
“The myth serves insurance companies’ interest in two ways,” Baker said. “One is when insurance prices go up really fast, which happens periodically, the existence of the myth helps shift the blame to lawyers. It’s not the insurance industry’s fault – it’s the lawyers.”
“Second, it stimulates demand for insurance. The perfect world for the liability insurance industry is lots of fear and outcry and demand for tort reform – but no tort reform. Fear, demand and outcry leads to people being concerned about liability and therefore increasing the demand for liability insurance. No tort reform is paradoxically good for insurance companies – because long term demand for their product is not affected.”
[For a complete transcript of the Intervie with Tom Baker, see 23 Corporate Crime Reporter 31(12), August 3, 2009, print edition only.]
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