I’ve never previously been a fan of malpractice reform. The arguments that doctors were unduly burdened seemed hollow in the face of their large paychecks (compared to most of society or even academics with similar amounts of education) and the large number of prospective medical students. However, talking about the current system this morning it occured to me that the entire malpractice system is mostly counterproductive and deserves to be abolished. Not because it is too tough on the ‘poor doctors’ but because it seems to only waste resources and encourage worse medicine without any particular benefit.

Instead the malpractice system should be replaced by a general government provided insurance for injury and disability regardless of the cause and a system of professional tribunals to discipline medical providers. Only in the case of criminal negligance or malice (delibrate injury or operating while under the influence) should a harmed patient have the right to damages from a medical provider. I argue for such a system below. The purpose of civil suit is twofold. First to recompense the harmed individual for loss of property or injury and secondly to deter inappropriate behavior. This system works well when damages are usually the result of intentional or reckless actions. People are discouraged from setting fires which might spread out of control and damage their neighbor’s property for fear they might be sued. In this situation their is a class of actions (those that endanger other people’s property) which are rightly discouraged by the threat of litigation and society benefits.

The situation seems much different in the case of medical malpractice. Unlike someone recklessly setting fires in their backyard most medical errors probably arise as unforseen mistakes. Few if any doctors say to themselves, “This procedure is probably worse for my patient but what the heck I’m going to do it anyway.” Thus unlike the fire situation there is probably no class of harmful activities doctors would pursue but are disuaded from by the fear of liability. Rather liability is probably applied primarily to mistakes visible only in hindsight and thus not susceptable to deterence.

The proof of this claim is the existance of malpractice insurance. If indeed liability was primarily the result of a recognizeable bad choice doctors would simply resolve not to make such choices and forgo the expense of liability insurance. In fact in such a situation there would be no liability insurance for the same reason there is no insurance for getting drunk and asaulting your neighbor. If the negative outcome is primarily the result of avoidable action instead of random chance the insurance companies would lose money as only those who are likely to commit the action will buy insurance. Hence the fact that all doctors buy malpractice insurance suggests that most liability issues are a matter of random, non-deterable, error.

This is of course not to say that medical liability has no effect on the way doctors practice medicine. Only that there is no recognizeable category of bad treatment it causes doctors to avoid. It is quite possible, likely even, that the allegations it causes doctors to practice defensive medicine are valid. Even if a doctor does not conciouslly sucumb to these effects he may be unconciouslly influenced to take less risky steps to save a patients life, e.g., be less thorough in removing a tumor rather than risk an error in surgery. I myself have seen the caution about liability impede proper treatment.

This is just one of the costs associated with the malpractice system. The legal expenses are quite significant as well not to mention the unpalatable effect that paid expert witnesses have on the medical community. Still one might argue that the court system is generally quite effective and only minor tweaks need to be instituted to make malpractice claims more difficult. I don’t think this is possible since the problem lies at the heart of the system of jury trials and any changes strong enough to prevent inappropriate cases of malpractice would prevent the courts from providing any kind of check on medical practice and thus be strictly inferior to the system I propose.

The difficulty with jury trials in malpractice cases is two-fold. First they don’t know enough about medicine to make informed choices and secondly they are too likely to be influenced by emotionally compelling situations. In particular juries are going to be highly predisposed to give a patient who ends up paralyzed after a surgical error a monetary award. Given the lack of medical knowledge and sympathetic response it seems impossible to suppose juries wouldn’t force the doctor whose ‘fault’ it was to pay and instead dispassionatly evaluate whether the doctor acted within reasonable medical guidelines. Especially when competining medical experts offer testimony the juries can’t hope to evaluate.

Moreover, the entire idea that someone deserves compensation when they are paralyzed as a result of a surgical slip (when presumably they knew the dangers entering surgery) but not when they slip and fall in their own house seems unmotivated. In effect the malpractice system amounts to a very expensive and unreliable system of insurance for those who suffer accidental injury during surgery. Yet since it hardly makes a difference to someone how they end up paralyzed why not simply expand this to a comprehensive government disability insurance?

Now each person, regardless of the cause of their disability, would be granted a certain government stipend (they get a little now but this would need to be raised). This person could bring a complaint against a medical board but unless they proved negligence of level of operating while drunk or malice could not get any cash reward. Thus the medical discipline could be handled by experts untainted by issues of sympathy or cash while care for people with injuries wouldn’t be dependent on the courtroom gamble plus all the useless expense would be eliminated.