under the threat of changing doctors) to use all tests, to try all treatments. Defensive medicine and overdoctoring (and malpractice insurance) inevitably raise the costs of medical care. Absurdly large awards in malpractice suits drive defensive practice, raise medical costs for the rest of us, in premiums and taxes if in no other way (something victims of malpractice have no right to do, even if their cause is just, and many suits reflect neither physician carelessness nor incompetence, but opportunity, greed, an unreasonable expectation of favorable outcomes, or a free-floating desire for vengeance). Ceilings on awards are necessary not just to protect physicians' right to practice but to spare the rest of us the resulting high prices, premiums, taxes. The concept of agency cannot be stretched to require an obstetrician to practice the specialty in a state where the insurance premium is not much less than the doctor's probable income from delivering babies. There are ways of punishing the negligent doctor, of protecting the public, without punishing everyone else: restrictions or temporary or permanent revocation of the license to practice (something almost never done), required training and retraining. Let the physician who is at fault, rather than all physicians, and all patients, pay.
In the absence of third-party payments it would not be possible for physicians to increase their fees and services sufficiently to afford malpractice insurance. Although some overtesting and overtreatment is genuine defensive medicine, some of it is nothing but greed given a credible cover.
Who shall be my agent's keeper? In a system where the patient confronts not a single general practitioner but a whole battery of specialists, there is more information, more opportunity for generating information about proper care. It is more difficult for ignorance, incompetence, irresponsibility, or plain human error to escape detection. Doctors are the ones, often the only ones, to determine whether or not one of their own is at fault. But too many doctors are like the famous monkeys; they see no evil, hear no evil, speak no evil. They fall short in the agency task of disciplining one another, reducing or avoiding the occasion for further breach of agency. 10 One might say that malpractice litigation and malpractice insurance are largely the by-products of this collective failure of the fraternity. As improvements are made in state after state in disciplining errant members of the profession, in some cases removing their license to practice, one might hope that the number of suits, the amounts recovered, the premiums for malpractice would all go down.