Book Review

Medical Malpractice

N Engl J Med 2008; 358:2853June 26, 2008

Article

Medical Malpractice
By Frank A. Sloan and Lindsey M. Chepke. 458 pp. Cambridge, MA, MIT Press, 2008. $40. ISBN: 978-0-262-19572-0

Controversy over the modern medical malpractice system has raged ever since the first malpractice crisis took place in 1975, but it is only during the past few years that empirical studies have generated the data that are necessary to produce an accurate understanding of how the system works. Frank Sloan and Lindsey Chepke pull these data into a comprehensive picture in this book, and unlike many other commentators, they do so with commendable objectivity.

The greatest strength of the book is the authors' use of the data to debunk myths about malpractice. They show that malpractice payments and premiums are not rising appreciably faster than health care costs in general and that malpractice costs account for only a trivial share of the overall inflation of the cost of medical care. The sudden rises in premiums and the unavailability of insurance that characterize malpractice crises are caused by the structure and function of the malpractice insurance industry — not by explosions in litigation. There is no clear evidence that physicians are leaving practice because of malpractice fears. The legal system does a respectable job of distinguishing between valid and invalid claims. Successful claimants receive too little compensation, not too much. There is no evidence that plaintiffs' attorneys are overpaid.

An oft-heard criticism of the malpractice system is that it fails to prevent medical mistakes. Sloan and Chepke also level this accusation. To their credit, they blame the low frequency of claims and the absence of experience-rating — the linking of the size of malpractice premiums to the error rates of practitioners. Far from being too oppressive, in short, the malpractice system is too weak. But without acknowledging it, Sloan and Chepke identify one of the great successes of malpractice deterrence: the reduction in mortality after the adoption of monitoring guidelines in anesthesiology, a step that was taken largely in response to high malpractice premiums. An important question is why the malpractice system does not exert this type of collective deterrent effect more often. The main reason is the uncertainty that underlies medical practice — practitioners rarely agree on what care is improper. When they do, the threat of liability can be a powerful motivator for improvement of the quality of care. This phenomenon was recently demonstrated by the “time-out” protocol that the Joint Commission on Accreditation of Healthcare Organizations promulgated in an effort to prevent surgery on the wrong body part.

Medical uncertainty explains not only the difficulty that the malpractice system has in trying to prevent malpractice, but also the high administrative costs of the system. As Sloan and his coauthors pointed out in an earlier book (Suing for Medical Malpractice. Chicago: University of Chicago Press, 1993), “to the extent that there is highly incomplete knowledge about the effect of particular interventions by health care providers on outcomes, it is unrealistic to expect courts to be omniscient in this regard.”

Having recognized that the deterrent effect of the malpractice system needs to be strengthened instead of weakened, Sloan and Chepke offer their main policy recommendation — that malpractice insurance premiums be experience-rated, so that those who make the most mistakes pay the highest premiums. In their view, the way to do this is to impose liability on hospitals rather than on individual physicians. This is not a new idea, and Sloan and Chepke admit that it would decrease the autonomy of physicians — which is the main reason that it has not been adopted. They also flirt with the idea of “health courts,” but their treatment of this conglomeration of past proposals is ambiguous.

Some of the material in this book, especially the chapter on the insurance industry, is rather technical, and it seems aimed more at academics and policymakers than at health care professionals or lay readers. Yet this is its strength — it is a scholarly masterpiece and is easily the definitive work on its subject.

Maxwell J. Mehlman, J.D.
Case Western Reserve University, Cleveland, OH 44118

Prof. Mehlman is the coauthor (with Dale Nance) of a report entitled Medical Injustice: The Case against Health Courts (Washington, DC: American Association for Justice Robert L. Habush Endowment, 2006), a critique of the malpractice reform proposal called “health courts.”