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80 Tex. L. Rev. 1639 (2001-2002)
Medical Malpractice and the Tort System: What Do We Know and What (If Anything) Should We Do about It

handle is hein.journals/tlr80 and id is 1653 raw text is: Commentary Medical Malpractice and the Tort System: What Do We Know and What (If Anything) Should We Do About It? David A. Hyman I. Introduction When physicians get together, the discussion frequently turns to medical malpractice. Those participating in such conversations typically hear (and volunteer) a mix of fact, fiction, and urban legends: Lawyers are out to get you, and patients will sue at the drop of a hat. If you don't do this test, it will cost you a ton of money and your reputation by the time the legal system is done with you. Anyone can sue you for anything, and the insurer isn't interested in whether you did a good job or not; they just want to settle the case and move on. Avoid the poor; they are more likely to sue. Juries don't like doctors, and they hand out money based solely on their sympathy for the plaintiff. It doesn't matter what you said or did; what matters is what is in the chart. If you're nice to your patients, it doesn't matter how badly you screwed up. Medical malpractice has nothing to do with quality and everything to do with whether the outcome was good or bad. Once a jury verdict is reported, you won't be able to get privileges anywhere, or malpractice insurance at any price. When plaintiffs' lawyers get together, a similar colloquy unfolds-albeit one in which doctors and malpractice insurers play the villains, and plaintiffs' lawyers the heroes. Editorial writers, policy analysts, and legislators typically pick one of these competing realities (usually the former), pair it with a few highly salient (and invariably unrepresentative) anecdotes, and then offer their preferred policy initiative as the solution du jour.1 Lobbyists for physicians and trial lawyers will then descend on the legislature and vigorously advocate their respective positions. Campaign contributions will be made, op-eds will be published, and hearings will be held. Physicians will complain about the malpractice liability coverage crisis (i.e., that coverage is too expensive or Professor, University of Maryland School of Law. I appreciate the helpful comments of Peter Jacobson, Michelle Mello, and Bill Sage. 1. Not surprisingly, one's perspective on the nature of the problem has a substantial impact on the reforms one favors. Thus, physicians believe that caps should be placed on non-economic damages and on attorneys' fees and that screening mechanisms should be developed to filter out frivolous cases. Conversely, plaintiffs' lawyers believe that peer-review privileges should be abolished, and that there should be mandatory, non-confidential reporting of all errors.

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