Medical Malpractice on Trial: Quality of Care Is the Important Standard

One should judge today's tort-and-insurance system for medical malpractice by traditional tort standards: would a reasonable person, asked for informed consent, choose this particular system as a means of policing medical care and paying for medical injuries? The short answer is "probably not," but a full analysis must weigh the system's costs against its benefits, then compare the results against those of feasible alternatives. In this calculus, quality medical care is the most important element. Significant costs of today's medical malpractice system include relatively objective fiscal elements like private liability insurance premiums (including self-insurance) that cover awards for economic loss and for pain and suffering, as well as public spending for courtrooms, judges, and juries. Highly subjective and intangible costs also need to be counted, such as the effects on medical practice and the availability of care, the impact of delayed compensation or rehabilitation on injured patients, time costs of plaintiffs and defendants, and damage to professional reputations and patient trust. Traditionally, benefits of the tort system are said to take two formscompensation and deterrence. Claimant-plaintiffs injured by the substandard behavior of a defendant-insured are to be "made whole" for the