Believing Six Improbable Things: Medical Malpractice and "Legal Fear"
Hyman, David A., Silver, Charles, Harvard Journal of Law & Public Policy
"Alice laughed." "There's no use trying," she said; "one can't believe impossible things."
"I daresay you haven't had much practice," said the Queen. "When I was your age, I always did it for half an hour a day. Why, sometimes I've believed as many as six impossible things before breakfast." (1)
Philip Howard believes. Howard believes that "[d]octors, teachers, ministers, even [L]ittle [L]eague coaches, find their daily decisions hampered by legal fear." (2) "Legal fear" exists when "[f]ear of litigation ... undermine[s] our freedom to make sensible decisions." (3) Howard has advanced this claim in a best-selling book, in numerous op-eds and speeches, and through his disarmingly-named public-interest organization, Our Common Good. (4) Howard has many allies. The list of co-sponsors and supporters of Our Common Good is a "Who's Who" of business and politics, public intellectuals, organized medicine, and health policy scholars. (5)
Belief is one thing; proof is quite another. Testing Howard's beliefs requires framing them as empirically falsifiable propositions and then assessing them in light of the data. Howard's recent Washington Post op-ed on medical malpractice separates his global claim ("[f]ear of litigation [is] undermin[ing] our freedom to make sensible decisions" (6)) into more manageable and concrete sub-claims--and data is available to test each sub-claim. (7) Howard's op-ed indicates he believes at least six things about medical malpractice:
1. The tort system causes physicians and other health care providers to hide their mistakes.
2. Physicians and other health care providers once dealt with mistakes more openly.
3. Liability encourages substantial defensive medicine.
4. Liability undermines access to needed medical services.
5. Liability creates an "extortion lottery."
6. A specialized medical court would be an improvement.
These individual sub-claims are at best unproven and at worst flatly wrong. This is not to suggest that the medical malpractice system is operating optimally, or that alternative institutional arrangements might not outperform it. As we have detailed elsewhere, the medical malpractice system (like the health care delivery system) has a whole series of pathologies. (8) Nonetheless, it does not follow that reform (whether that advocated by Howard or by anyone else) will necessarily make things better. Institutional imperfection is an unfortunate reality of public policy. (9) It is foolish to choose Policy A over Policy B by listing the deficiencies of Policy B and the virtues of Policy A; one must also consider the virtues of Policy B and the deficiencies of Policy A if the decision is to be informed by anything other than faith in one's own belief system.
II. BELIEF AND REALITY
Medical malpractice is the best-studied area of the tort system. (10) Over thirty years of empirical studies and extensive historical inquiry have made it possible to assess the performance of the system based on empirical data, not anecdotes. This Part goes through each of Howard's sub-claims regarding medical malpractice and considers how well the sub-claims correspond to what is actually known about the performance of the medical malpractice system.
Assertion 1: The tort system causes physicians and other health care providers to hide their mistakes.
Howard claims that "[t]ragic human errors occur, for example, in prescription dosage, because people fearful of legal consequences are reluctant to speak up." (11) In other words, fear of liability is encouraging a culture of silence: the higher the risk of liability, the lower the probability of voluntary error reporting. Howard is not alone in making this claim; the Institute of Medicine asserted in a famous 1999 report that "[p]atient safety is  hindered through the liability system and the threat of malpractice, which discourages the disclosure of errors. …