Book Review

First, Do No Harm: The Cure for Medical Malpractice

N Engl J Med 2005; 352:521-522February 3, 2005

Article

First, Do No Harm: The Cure for Medical Malpractice
By Ira E. Williams. 197 pp. Mt. Pleasant, S.C., Corinthian Books, 2004. $24.95. ISBN: 1-929175-39-6

Some specialty areas of medicine are again facing the problem of obtaining affordable liability insurance for medical negligence. Most medical providers and liability insurers blame the problem on plaintiffs' lawyers and wayward juries, whereas consumer groups and the plaintiffs' lawyers blame medical negligence and problems associated with business cycles in the insurance industry. Dr. Ira E. Williams, a board-certified oral and maxillofacial surgeon and dental anesthesiologist, has written a thoughtful book about medical negligence and malpractice litigation. He has outlined a plan to alleviate it. Ideas in the book deserve serious consideration.

There is a catch, however. Doctors will have to consider the book's premises, which will fly in the face of the current attitudes of many doctors. For instance, Williams writes, “The great increase in medical malpractice suits has not been caused by a `litigious' society, rapacious attorneys, inadequate liability caps or greedy patients. Negligent medical care happens, and since almost no regulation of medical negligence occurs within the profession, the courts are the only recourse a harmed patient has.” Furthermore, he states, “Tort reforms, past, present, and future, will continue to tip the scales of justice in favor of the doctor and against the patient.” And, “The AMA [American Medical Association] Litigation Center is seeking to curb the effect of expert witnesses who would try to upgrade a standard of care.” First, Do No Harm, a reader-friendly book, does not adequately document these premises. Nevertheless, various empirical-research studies published in reputable peer-reviewed journals are consistent with the general theme of the premises.

Williams's proposed solution for reducing medical errors is to develop what he calls Individual Responsibility Peer Review, which places responsibility on the individual practitioner for self-regulation. He asserts that a line can be drawn between an iatrogenic outcome and negligence. In the individual-responsibility scheme, each medical practitioner “should create and utilize a current and acceptable standard of care for each procedure within his or her scope of practice.” When bad outcomes occur, a committee of peers who truly act as neutral reviewers should assess the steps that were taken in the particular case and compare them with the protocol. The scheme is likened to the checklists that airplane pilots follow before starting the engines.

Undoubtedly, detractors will say, justifiably, that medical treatment is more complicated and variable than flying a plane and that the development of a protocol for each medical treatment is impractical in terms of the time and details that would be required. Questions will arise about how to implement true peer review and about the willingness of doctors to sanction their colleagues. Most important is the issue of how the protocols and peer-review findings could be protected from use in legal proceedings. These are some of the serious problems with Williams's proposal, but they are not necessarily fatal to it.

One of the largely ignored findings of the Harvard Medical Malpractice Study is that, although most physicians who responded to a survey were willing to admit that all doctors make mistakes, they were often unwilling to label substandard care the result of negligence. First, Do No Harm confronts this view head-on and proposes a way to start thinking seriously about how to reduce medical errors and maybe even the amount of malpractice litigation.

Neil Vidmar, Ph.D.
Duke University Law School, Durham, NC 27708
vidmar@law.duke.edu