This will undoubtedly fall into the category of "things unchangeable" in our current system, but in the interest of fairness to my profession, I can't let the allegation that medical negligence is surprisingly common pass without comment. This assertion is used repeatedly by the trial bar and mainstream media to argue against tort reform, but it isn't necessarily true.

Yes, doctors make mistakes. No doubt about it. But we aren't, as the Institute of Medicine claims, the leading cause of accidental deaths in the U.S. In fact, the CDC tracks deaths due to "surgical and medical complications," and those deaths don't even make the top 100 leading causes of death. In 2000, there were 2,804 deaths due to medical complications, a mere fraction of overall accidental deaths.

The popular assertion that medical mistakes are a leading cause of death stems from the egregiously faulty statistical methods used by the Institute of Medicine in their report, "To Err is Human." The Institute based their claim that doctors are the eighth leading cause of death on a study done by a team of Harvard researchers in the 1980’s that looked at adverse events in a sampling of New York state hospitals and a similar study from hospitals in Utah and Colorado. The Institute took those studies one step further and extrapolated the data to apply to the entire nation. It’s invalid to apply data from one year (1984 in the case of the Harvard study) to another year (1997 for the Institute’s data), and it’s invalid to apply data from one state to the entire nation.

The other problem with all of the studies purporting to show an epidemic of medical malpractice is one of definition. In the Harvard study, for example, the "medical errors" were such outcomes as drug complications, wound infections, and technical complications, "diagnostic mishaps" and "errors of omission." Wound infections and drug and technical complications are not necessarily malpractice. They are adverse events that are known risks of medical intervention. And while diagnostic mishaps and errors of omission may sometimes be the result of negligence, they are also much easier to identify with the benefit of hindsight than at the moment of medical decision making. The simple cough a patient had for one week that the doctor diagnosed as bronchitis but one month later turned out to be lung cancer, for example, could be classified as an "error of ommission," even though no one but a plaintiff's attorney or a chart reviewer for a medical error paper would call it that.

Yes, negligence happens. But it isn't the driving force behind escalating malpractice litigation. That's why "a small fraction of people injured by medical negligence receive compensation, and most people who receive compensation are not victims of medical negligence," as Professor Kessler has pointed out. It's the perception of injury more than actual injury that drives malpractice litigation - and an ever growing intolerance for risk of any kind.

The real tragedy of our system is that it fails so miserably to sort real negligence from perceived negligence.