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By Michael J. Saks The best way to prevent medical malpractice litigation is to reduce the incidence of medical errors and injuries. Studies conducted over the past 30 years have repeatedly found them to be the leading cause of accidental death and injury in the United States, exceeding all other causes combined. The president's solution to this public-health catastrophe is to protect insurers and injurers at the expense of seriously injured patients. Proponents of the legislation argue that litigation adds to health-care costs because doctors and hospitals pass those costs along to consumers. But that is exactly why health-care providers cannot complain too loudly about malpractice premiums: It is patients, not providers, who ultimately are expected to pay the bill. Second, that litigation "surcharge" buys patients deterrence against error, harm and the resulting costs, thereby keeping the total real cost of health care lower. As the deterrence factors go down, injuries, and the total real cost of health care, rise. A relatively few doctors cause most of the carnage. About 5 percent of doctors are the focus of half the lawsuits. Removing those doctors would reduce quite a lot of malpractice, malpractice suits and the costs of both. ... President Bush's bill makes no effort to solve any of the real problems, while ensuring that the worst doctors will continue to burden their colleagues as well as their patients.
MICHAEL J. SAKS is professor of law and a psychology fellow of the Center for the Study of Law Science and Technology, Arizona State University. These essays were distributed by Knight Ridder/Tribune Information Services
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