The Medical Malpractice Myth [Hardcover]

Tom Baker (Author)

Book Description

Publication Date: December 1, 2005 | ISBN-10: 0226036480 | ISBN-13: 978-0226036489 | Edition: 1

American health care is in crisis because of exploding medical malpractice litigation. Insurance premiums for doctors and malpractice lawsuits are skyrocketing, rendering doctors both afraid and unable to afford to continue to practice medicine. Undeserving victims sue at the drop of a hat, egged on by greedy lawyers, and receive eye-popping awards that insurance companies, hospitals, and doctors themselves struggle to pay. The plaintiffs and lawyers always win; doctors, and the nonlitigious, always lose; and affordable health care is the real victim.

This, according to Tom Baker, is the myth of medical malpractice, and as a reality check he offers The Medical Malpractice Myth, a stunning dismantling of this familiar, but inaccurate, picture of the health care industry. Are there too many medical malpractice suits? No, according to Baker; there is actually a great deal more medical malpractice, with only a fraction of the cases ever seeing the inside of a courtroom. Is too much litigation to blame for the malpractice insurance crisis? No, for that we can look to financial trends and competitive behavior in the insurance industry. Are these lawsuits frivolous? Very rarely. Point by point, Baker—a leading authority on insurance and law—pulls together the research that demolishes the myths that have taken hold about medical malpractice and suggests a series of legal reforms that would help doctors manage malpractice insurance while also improving patient safety and medical accountability.

President Bush has made medical malpractice reform a priority in his last term in office, but if history is any indication, legislative reform would only worsen the situation and perpetuate the gross misunderstanding of it. The debate surely will be transformed by The Medical Malpractice Myth, a book aimed squarely at general readers but with radical conclusions that speak to the highest level of domestic policymaking.

Editorial Reviews

From Publishers Weekly

In January 2005, President Bush declared the medical malpractice liability system "out of control." The president's speech was merely an echo of what doctors and politicians (mostly Republicans) have been saying for years—that medical malpractice premiums are skyrocketing due to an explosion in malpractice litigation. Along comes Baker, director of the Insurance Law Center at the University of Connecticut School of Law, to puncture "the medical malpractice myth" with a talent for reasoned argument and incisiveness. He counters that the real problem is "too much medical malpractice, not too much litigation," and that the cost of malpractice is lost lives and the "pain and suffering of tens of thousands of people every year"—most of whom do not sue. Baker argues that the rise in medical premiums has more to do with economic cycles and the competitive nature of the insurance industry than runaway juries. Finally, Baker offers an alternative in the form of evidence-based medical liability reform that seeks to decrease the incidence of malpractice and also protect doctors from rising premium costs. Having worked with insurance companies, law firms and doctors, Baker brings experience and perspective to his book, which is sure to be important and controversial in future debates. (Nov.)
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Review

“The Medical Malpractice Myth is a terrific book that succeeds fully in realizing its basic goals of offering an accessible debunking of the medical malpractice myth, redefining the key problems at stake related to medical malpractice, and pointing the way toward more effective and politically appealing reform policies that address the ‘real’ issues. Tom Baker’s work has a far better chance for generating a wide readership and public influence than any other book on the topic.”--Michael McCann, Gordon Hirabayashi Professor for the Advancement of Citizenship, University of Washington, and coauthor of Distorting the Law

(Michael McCann )

“An outstanding accomplishment—accurate, reader-friendly, and highly relevant to the current debate about tort reform. Tom Baker has done a marvelous job confronting existing medical malpractice myths, and, though his proposal for medical liability reform will no doubt meet resistance on a number of fronts, it will certainly provoke discussion.”--Neil Vidmar, Russell M. Robinson II Professor of Law, Duke Law School, and author of Medical Malpractice and the American Jury

(Neil Vidmar )

“Finally someone has demonstrated how complex this challenge really is. Narrow, facile answers won’t solve the problem.”--Senator Richard J. Durbin, Assistant Democratic Leader, United States Senate

(Senator Richard J. Durbin )

See all Editorial Reviews

Product Details

• Hardcover: 222 pages
• Publisher: University Of Chicago Press; 1 edition (December 1, 2005)
• Language: English
• ISBN-10: 0226036480
• ISBN-13: 978-0226036489
• Product Dimensions: 7.1 x 0.8 x 9.3 inches
• Shipping Weight: 1.2 pounds (View shipping rates and policies)
• Average Customer Review: 3.9 out of 5 stars  See all reviews (18 customer reviews)
• Amazon Best Sellers Rank: #462,164 in Books (See Top 100 in Books)
  • #9 in Books > Law > Health & Medical Law > Malpractice
  • #13 in Books > Law > Business > Insurance Law

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Most Helpful Customer Reviews

48 of 53 people found the following review helpful

5.0 out of 5 stars Model Social Science December 12, 2005

By Peter Siegelman

Format:Hardcover

This book is a model for what social science can do, in four ways.

First, it takes on an important topic--one that has generated incredible heat in the popular press and in political circles.

Second, it takes an entirely fair perspective. Old fashioned as it may seem, the author is actually interested in finding out the truth about the med mal problem.

Third, it surveys the available literature in the social sciences, reads and cogently digests every significant study, and assess the merits of each. The author is not an economist, but his understanding of economics and his sober and astute assessment of the quantitative AND qualitative evidence is terrific.

Finally, the book does all this with a clarity and cogency of writing that make it eminently readable. This is not a dull slog through endless tables and figures. While the empirical evidence is discussed, and there is even some attention paid to issues of methodological reliability and so on, the prose is lucid and no one interested in the topic will find it tough going in the least.

In fact, no one interested in the topic--from doctor to lawyer to politico--can afford not to read this book. If only more social science were this good, the world would be a better place.

25 of 31 people found the following review helpful

5.0 out of 5 stars Cogent and Persuasive January 29, 2006

By Marc Mayerson

Format:Hardcover

This is a copy of my review from the Insurance Scrawl blog, http://www.insurancescrawl.com :

Nearly 100,000 killed last year, the same rate as in the ongoing, repellent genocide in Darfur. But this figure is the estimate of the number of Americans who die annually due to medical-malpractice errors.

That's one of the key points emphasized in the trenchant new book by Professor Tom Baker, The Medical Malpractice Myth (2005). Baker's slim, accessible, engaging, and well-written volume argues that the prevailing myths concerning medical malpractice and doctors' liability-insurance premiums are the stuff of urban legend.

One of the key contributions of the book is to assemble in one handy place the current literature about the amount of medical malpractice, the number of med-mal claims, the settlement/judgment costs and transaction costs of these cases, insurance premiums, and ups and downs in insurance markets. Baker argues convincingly that there is an epidemic of medical practice in the United States, nearly 100,000 preventable deaths annually, with only a fraction of claims being pursued (and most nonmeritorious claims are resolved before trial and often are dropped). The number of deaths annually exceeds automobile-related and workplace-related deaths combined, yet the medical-liability insurance premiums in toto are a small fraction of the premiums collected for auto and worker's comp.

Baker approaches his study with an open mind and transparently - he shows the reader the evidence, the bases for his interpretation of the evidence, and honestly identifies where the data are uncertain, limited or unclear. The book is quite refreshing in this regard, given the jeremiads one usually sees in these discussions. Baker assembles the evidence that the pricing spikes we see in med-mal insurance are straightforward reflections of the insurance cycle and are not driven (much) by the tort-litigation side. As he writes, "the two most recent medical liability insurance crises did not result from sudden or dramatic increases in medical malpractice settlements or jury verdicts." (p. 53-54) Baker's analysis of the mechanisms of insurance markets and the insurance cycles is consistent with the analyses of Warren Buffett and Richard Stewart, even though most people seem to uncritically adopt the myth of actuarial pricing of insurance.

The Medical Malpractice Myth discusses the evidence of the impact on the supply of doctors and the costs of defensive medicine, arguing ultimately that med-mal claims have little effect. Baker takes the normative position that medical-malpractice claims are good for the system and that the legal system adequately sifts out nonmeritorious claims. Further, Baker tries to gauge the overall costs of the tort system, arguing ultimately that med-mal victims are undercompensated (especially bearing in mind the large majority of potential plaintiffs that do not seek recompense).

Baker further offers his suggestions for reforming the liability, compensation, and insurance systems for medically caused injury. Baker's objective is to get the conversation started. The book is a plea - but not for his proposed reforms per se but rather for an evidence-based discussion of the issues.

Professor Baker bravely went into hostile territory recently at a forum sponsored by the American Enterprise Institute to discuss his book. The forum is available online (including video), and Baker's AEI presentation, the critiques of the discussants, and Baker's rebuttal provide a good overview of the facts, issues, and areas for further research and discussion. I endorse the observation of Professor Martin Grace, one of the AEI "discussants" and a fellow blogger, that it would be profitable to understand better the impact of physician-owned mutual insurance companies on the med-mal insurance market and loss-prevention (i.e., malpractice-injury avoidance) efforts.

Much of Baker's argument is confirmed by the Insurance Information Institute's most recent issue update on medical malpractice (December 2005), which to its credit collects much recent data and leavens it only slightly with its political perspective. In what to me seems as ironic understatement, the III cites a recent Missouri study that "found that the leading grounds for malpractice awards in the state in 2004 were medical errors in diagnoses and surgery." Like Baker, the III cites a study that only one in eight people who suffered from medical-malpractice injury filed a claim. The III further echoes Bush Administration experts who underscored the need to identify and discipline incompetent doctors and encourages risk-management by doctors and hospitals, including requiring doctors to study medical-malpractice prevention and mandating reporting of medical errors (also strongly endorsed by Professor Baker). Furthermore, the III cites a study by an insurance-consulting firm that predicts that the medical-malpractice insurance sector will be profitable in 2006; in 2004 the combined ratio for med-mal insurers was 109.2, meaning that the industry needs an investment return of 9.2 percent on the premiums collected in order to turn a profit. Baker argues that the data show that insurers rarely pay claims that do not substantially indicate malpractice and reports that claims take roughly seven years from premium collection to claim payment, thus giving insurers the opportunity to make their 9 percent investment return (total, not annualized) to be profitable.

It's easy for me to recommend this book, especially to policymakers and their staffs, stakeholders including doctors and their professional organizations, as well as to lawyers, insurers, and laity interested at all in the topic. The Medical Malpractice Myth is iconoclastic but calm and dispassionate in tone. It is informative, easy to read, and short (180 pages). It's not meant to the be the last word on the subject, but rather aims to start a new conversation, one in which you'll be equipped to participate once you read Baker's cogent analysis.

13 of 17 people found the following review helpful

5.0 out of 5 stars Our Broken System of Justice May 5, 2007

By Linda F. Rice

Format:Hardcover|Amazon Verified Purchase

This book is a must read for anyone who thinks that tort reform is a good idea. We've tried it in California. The effect has been to effectively immunize health care providers from liability by closing the courthouse door to claims of medical negligence. There is no incentive to improve the health care system or to address the systemic problems that cause most injuries and deaths.

Medical negligence is a fact. Our government estimates that as many as 98,000 people per year die from preventable medical errors. The cost of these errors is enormous and, when our civil justice system is crippled by tort reform, those costs are often shouldered by the public through increased taxes and fees.

Tort law is designed to do two things: to provide just and reasonable compensation to people injured by the negligence or carelessness of another and to discourage behavior likely to result in injury. When we "dis-incentivize" good medical practices by immunizing health care providers, we make it more, not less, likely that people will be injured as a result of medical errors.

There is no evidence of which I am aware that these reforms have benefitted anyone other than big insurance companies. In California, it is increasingly difficult or impossible for patients who are injured by medical errors to receive "just and reasonable" compensation for the harm caused. The cost of litigating such cases is prohibitive in light of the 32-year-old MICRA cap which limits damages to $250,000 in most cases - even those involving gross negligence or the death of a child.