95 MALPROCESS, NOT MALPRACTICE

The present medical malpractice (med-mal) tort system is intended to accomplish two goals: deter wrongdoers and help victims. It does neither. Many widely held assumptions about med-mal are in error, including the bad apple theory. Consequences of the current system include huge and underestimated costs; strong risk aversion constraining innovation; increasing shortages of providers; and lack of appropriate compensation to injured patients. Detailed analysis of 86 med-mal lawsuits shows that only 31 cases (38%) were preventable adverse outcomes caused by mistakes. Nine percent of cases were initiated by an erroneous autopsy conclusion. Most injured patients received no or inadequate compensation. There are three reasons for bad medical outcomes: (1) providers are human, that is, imperfect; (2) medical knowledge is incomplete and individual patient outcomes are not predictable; and (3) the system is inherently flawed, sometimes frankly contradictory, and fails to protect both patient and provider from error. The United States has a malprocess rather than a malpractice problem.