Correspondence

Medical Malpractice

N Engl J Med 2004; 350:1798April 22, 2004

Article

To the Editor:

As a medical-malpractice defense attorney and former practicing anesthesiologist, I read with interest the report on malpractice by Studdert et al. (Jan. 15 issue).1 The authors note that “because they must absorb the costs of managing litigation, . . . plaintiffs' attorneys have an incentive to make careful decisions about which cases to take.” Unfortunately, this is not always what I see in practice.

Some plaintiffs' lawyers simply file a complaint, essentially a form on which they fill in the blanks with a few pertinent facts. The burden then shifts to the defendant to provide a defense. This process involves months, if not years, of discovery (e.g., depositions and interrogatories), often primarily at the defendant's expense. An unjustified case is then often dropped when the plaintiff's attorney is confronted with discovery that is inconsistent with the complaint. In the meantime, the defendant has paid legal bills, court expenses, transcript fees, expert fees, and other expenses.

The defendant spends thousands of dollars. In our legal system, each side generally bears its own costs, win or lose. If malpractice plaintiffs drop or lose a case, should they pay defendants' costs?

Robert A. Herbert, M.D., J.D.
Sheuerman, Martini, and Tabari, San Jose, CA 95125

1 References

1. 1

   Studdert DM, Mello MM, Brennan TA. Medical malpractice. N Engl J Med 2004;350:283-292
   Full Text | Web of Science | Medline

To the Editor:

When the price of oil went up, the company that delivers liquid nitrogen to my office imposed a surcharge on top of its delivery charge, with an unapologetic note stating that this surcharge was needed “to help defray the increased cost of fuel.” The tobacco industry can shrug off the multibillion-dollar Master Settlement Agreement by simply passing on to consumers the costs involved in the form of higher prices.1 However, physicians have been forced to absorb the increased costs of malpractice premiums, since they are unable to raise their fees.

I believe that one of the reasons for the failure of lawmakers to enact meaningful malpractice reform is that the general public has largely been insulated from the high costs involved and therefore has little interest in changing the status quo. If patients had to pay a malpractice surcharge on top of their out-of-pocket copayment, I suspect the ensuing clamor would force state and federal legislators to take prompt action on this issue.

Lawrence M. Lieblich, M.D.
State University of New York at Stony Brook, Stony Brook, NY 11790
llieblich@aol.com

1 References

1. 1

   Schroeder SA. Tobacco control in the wake of the 1998 Master Settlement Agreement. N Engl J Med 2004;350:293-301
   Full Text | Web of Science | Medline