Medical Malpractice Myths and Realities: Why an Insurance Crisis Is Not a Lawsuit Crisis

President Bush made legislative changes to the civil justice system a priority in his second term, arguing that federal displacement of traditional state common law will help solve the nation’s healthcare crisis and bolster the economy. Proposals for “tort reform” raise far-reaching and important issues. Certainly, careful analysis should precede any attempt to alter by legislative fiat several centuries of accumulated wisdom among judges, citizen-jurors, and litigants about how best to hold defendants accountable for wrongful conduct and to secure justice for injured victims. Unfortunately, the current debate over the civil justice system is characterized less by careful analysis than by unfounded claims, shrill rhetoric, and spurious anecdote. The situation is particularly acute with respect to the debate over medical malpractice law, where a body of misinformation has proven so durable and influential that Tom Baker has dubbed it “the medical malpractice myth. . . . As detailed in this Article, the United States is unquestionably suffering from a healthcare crisis—one symptom of which is an unnecessarily high number of injuries caused by doctors and other healthcare providers—and also from a malpractice insurance crisis. However, contrary to the arguments of those who support restrictions on common law remedies, there is no medical malpractice lawsuit crisis