The Medical Malpractice Myth

By Jain, Sarah | Law & Society Review, September 2007 | Go to article overview

The Medical Malpractice Myth


Jain, Sarah, Law & Society Review


The Medical Malpractice Myth. By Tom Baker. Chicago and London: University of Chicago Press, 2005. Pp. 222. $22.50 cloth; $14.00 paper.

Reviewed by Sarah Jain, Stanford University

With The Medical Malpractice Myth, Tom Baker has contributed a lucid and detailed account of the dual problems of medical error and medical malpractice law in the United States. Drawing on, and carefully outlining and explaining, dozens of studies related to medical malpractice, Baker argues against what he calls the "medical malpractice myth." This myth, ubiquitous in the media and as common knowledge, according to Baker, claims that medical malpractice costs are skyrocketing and driving doctors out of the profession, that plaintiffs sue frivolously, and that undeserving claimants win millions of dollars. Baker's "mission" is to reframe "the public discussion about medical malpractice lawsuits" (p. 19).

In fact, Baker argues that the real social problem is too much medical malpractice, not too much litigation. Indeed, as many studies corroborate, the vast majority of those who suffer medical malpractice do not sue. Furthermore, medical malpractice insurance premiums are cyclical; it is not litigation that drives these cycles, but rather financial trends and competitive behavior among insurance companies. While undeserving people do sometimes bring claims of medical malpractice, the vast majority of these are settled before trial-and often initiating a suit offers the only way that patients can get information about their medical treatment since "only 30% of patients harmed by medical error [are] told of the problem by the professional responsible for the mistake"(p. 5). According to Baker, the medical malpractice myth serves one purpose: to allow people to "keep ignoring the real, public health problem" of medical error (p. 3). He, on the other hand, wants to defend the law as something that can improve the quality of health care.

This book offers a valuable shift away from malpractice lawsuits to the issue of medical error in the United States. For readers who want the general contours of the argument but do not have time to wade through the detailed evidence offered in each chapter, Baker offers handy summaries to conclude each section. Nevertheless, the chapters are well worth reading for their analysis of the various studies that propel the argument. Baker is a master at unwrapping the methods and conclusions of various studies and demonstrating what they can and cannot do. This attention to detail results in a finely reasoned argument for malpractice law, which, after all, was not a system designed by plaintiffs' lawyers. …

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