This is an interesting question, but it is not the main question. The trial lawyer lobby has fixated on malpractice premiums representing only 1% of health care costs. But malpractice costs affect physicians not all of health care costs. Malpractice premiums represent much more than 1% of physician gross income. This value probably ranges as high as 25% for high risk specialities (I will admit to guessing here, but hope that some readers have more accurate numbers).

I do know that I pay slightly more than $8k per academic internist. Since we have other responsibilities which pay parts of our salary (research, education, administrative functions), this number probably represents 5-10% of our clinical salary. And general internal medicine is a low risk, low premium specialty.

So I reject the “1% argument” as an irrelevant apples and oranges comparison.

The other major point that commentors have debated is the effect of malpractice on test ordering. Lawyers again try to argue against the costs of defensive medicine using circuitous and faulty logic. They argue that states with caps should have less defensive medicine.

Caps have importance, but as I repeatedly state they are a band-aid and we need surgery. We need to establish new solutions for physicians and patients. Jury trials are the wrong way to adjudicate malpractice.

Caps will not change health care costs at the state level because “standards of care” diffuse across the entire country. Alabama is not insulated, nor is California, Minnesota or Arizona. Physicians train across the country and move. Continuing medical education is not state specific.

The malpractice environment effects practice regardless of the size of punitive damages. Decreasing the size of punitive damages decreases malpractice premiums (well documented), and decreases lawsuits.

We must pay attention to malpractice because our current system is helping to erode health care in some areas of the US. Continued increases in malpractice will allow this cancer to metastasize. Patients have already suffered because specialists have left their areas.

My main point is that malpractice is a poor way to increase health care quality. Malpractice has a negative effect on the quality movement.

The trial lawyers will play sophist games about this problem. They will invoke “the most egregious injuries”. We can handle these issues with expert panels (composed of physicians, judges, and educated laypersons). These panels can better judge practice than our current jury system. Such panels will not require huge legal expenditures. They would not require the expensive search and acquistion of expert witnesses. Expert witnesses would become part of the system. These experts would not have a financial interest related to which side hires them. Rather the courts would hire them to dispassionately evalute the evidence.

Once we have a better system, then we can better use the principles of medical decision making and evidence based medicine to make good medical decisions. Currently, many physicians eschew these principles and adopt CYA as their modus operandi. Unfortunately, CYA leads to many errors of commission. We need to develop guidelines that the panels will recognize as the standard of care. Only a different system will allow that.

So I await the trial lawyer commentary about how the current system protects the patient. To that I can only laugh. Malpractice cases have neither adequate sensitivity nor specificity. The occasional patient (and their lawyer) win the lottery. Many physicians modify their practice in ways which do not represent the best medicine. They act from fear. Medicine should not be about fear, but rather about making the best possible decisions given our uncertain database.