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The Patient Injury Epidemic: Medical Malpractice as a Curative Tool


The debate over medical liability is noisy, discordant, and riddled with false claims. Reform proposals have typically aimed to reduce lawyers' incentives to sue by capping noneconomic damages, reducing contingency fees, or making the case more expensive to try. Physicians and the public have been fed a drumbeat of misinformation about "frivolous" litigation, which seems to mean any lawsuit against a doctor. Patients, having progressively lost access to lawyers and to full damage recovery, are forced to consider alternative dispute resolution mechanisms that offer significantly less money in forums that can often be controlled and gamed by repeat players—insurers, hospitals, or managed care organizations. Insurers support any kind of reform, particularly damage caps that reduce their exposure to claims. Politicians use the extreme outlier cases to propagandize and overstate the need for reforms, then offer up reforms that reduce the power of the trial bar. Politicians then wave the banner of cost savings that are never convincingly established. And practitioners of popular behavioral economics toy with the merits of patient waivers of their right to sue as an "efficient" approach to claims for medical injuries.