Mr. Studdert has received a fair share of bashing on this blog, so I read with great interest his Senate testimony supporting health courts, in conjunction with Common Good.

He addresses the skewed portrayal of his famous study:

Some outlets ran headlines like, “Most malpractice claims are legitimate, study says.” Others announced, “Study asserts many medical malpractice suits groundless.” The American Medical Association’s response began, “Today’s study is proof positive that meritless medical liability lawsuits are clogging the courts…” The Association of Trial Lawyers for America (ATLA) declared, “New study shows courts not clogged with frivolous medical malpractice lawsuits.”

These reactions are not surprising. The warring parties – —typically the medical profession and their liability insurers versus the plaintiffs’Â’ bar and various consumer advocacy groups – —are prone to extreme claims about the system’s vices and virtues. Often, these claims are little more than partisan rhetoric, unsupported by hard evidence about how the system actually performs. Even when that evidence is at hand, each side tends to spins it to their own advantage.

He counters my argument that the current system is merely a test with a 63 percent specificity:

Do these results represent a passing grade for the system or a failing one? The answer depends partly on one’s expectations going in. Those who believe the system should attract only legitimate claims and reject every single illegitimate one will see red flags. But these are unrealistic expectations. Sometimes patients and their attorneys don’t understand what has happened. They know a serious and unexpected adverse outcome has occurred, but not why, and litigation may be the only way they can find out.

I don’t happen to agree with that, but we’ll leave that for another post. He does however, contend that the current system needs to change:

To interpret this pair of findings as indicating that the medical liability system “works,” however, would be wrong.

One shortcoming he touches on is defensive medicine:

Defensive medicine refers to changes in the way care is delivered – —the ordering of unnecessary tests, for example, or ceasing to perform high-risk procedures – —which are motivated by fear of litigation, rather than good medical practice. It is not known with any reasonable degree of certainty how prevalent defensive medicine is, what its health impact is, or how much it costs the health care system. But there is solid evidence that it exists, and its adverse impact may be very substantial.

Another is a fundamental philosophical difference between lawyers and doctors:

There is friction between malpractice litigation and the quest to improve the quality and safety of medical care. Trial attorneys believe that the threat of litigation is needed to make doctors accountable, and that it ultimately makes doctors practice more safely (even though most empirical research has not found evidence of such a deterrent effect.) Physicians do not believe the litigation contributes to the quality of care. On the contrary, they argue that the malpractice system threatens quality, both by chilling interest in openness and quality improvement activities and by stimulating the kind of defensive medical practices described above . . .

. . . In the absence of evidence from alternative approaches to compensating medical injury, this is surely an unending and unwinnable debate.

The last point is a major reason why the eternal battle between doctors and lawyers will continue.

Interesting reading. Kudos Mr. Studdert.