Thanks for inviting me to discuss these issues with you. One disclaimer: This is my first experience in an online format, so I may not include many click-throughs. I have worked on medical liability – mainly malpractice but also managed care litigation and a small amount of product liability – off and on for about 15 years. Medical malpractice itself is a cyclical issue: I often call it the Rip van Winkle of health policy. It wakes up every decade or two when liability insurance premiums rise and someone declares a “crisis.” It is also Rip-like in that it slept through two decades of revolutionary change in health care from the 1980s to now, but less Rip-like in that today’s townspeople don’t recognize how outdated the established debate has become. More about that later, no doubt.

I have been living and breathing malpractice research for three years. In early 2002, when the current crisis was first being recognized, The Pew Charitable Trusts asked me to direct a research and communication program called the Project on Medical Liability in Pennsylvania (where Pew has its headquarters) that would evaluate the medical liability situation there and nationally. The project’s work, which involved more than two dozen researchers and produced about an equal number of publications, attempted to shed light on four key issues affecting Pennsylvania and many other states, issues I hope we will discuss this week:

· Access to health care in a malpractice crisis
· Patient safety and quality of care
· Capping damages in malpractice cases
· Using public funds for malpractice insurance

The project finished this fall, though there are still a few peer-reviewed articles yet to appear, plus a book that Cambridge University Press will publish early next year.

I can think of two reasons why Pew might have asked me to head their project. First, nobody else with solid academic credentials in malpractice policy wanted to do it. Academics who worked on the issue during the 1970s crisis came up with many good ideas, but the political stakeholders pretty much ignored them. Ditto in the 1980s crisis. Eventually, most people stop hitting their heads against brick walls. I had only hit my head against a malpractice brick wall once – in 1993 in connection with the proposal to subject managed care plans to “enterprise liability” as part of national health reform. I thought I had more to contribute. I’m also an optimist by nature. And I have a hard head.

Second, I am not particularly interested in medical liability for its own sake. I am a law professor at Columbia (visiting this year at the University of Texas), and certainly want lawyers to do a good job for their clients and for society. For the record, I was a large-firm lawyer for five years, working mainly on securities transactions and corporate acquisitions. At Columbia, I teach health law, regulatory theory, professional responsibility, and antitrust. I consider myself a sophisticated observer of the legal profession, and I am an avid student of professional institutions generally. So law matters deeply to me.

But I am also a physician and health policy researcher, and my interest in medical liability relates primarily to how liability affects the American health care system. If access to health care improves as the result of a reform, I’m for it. If quality improves, I’m for it. If medical costs are associated with good medical value, I’m for it. If doctors (or other health professionals) and patients share a compassionate, durable, trusting, mutually beneficial relationship, I’m for it. But those are my issues, not whether tort law or trial lawyers are good or bad for America in some overall social or economic sense.

My overarching desire is to have medical liability debated as a health policy problem and to have reforms adopted that further those goals (access, quality, cost). If that happens, I will leave malpractice research behind as a major aspect of my professional work, and will eagerly get back to more pressing problems in national health policy. Number one on that list, I should add, is access to health care and health insurance for nearly 50 million Americans. That is serious. Very serious.

Enter your report on health care as the third installment of the Manhattan Institute’s “Trial Lawyers Inc.” series (clever title). We’re both mature scholars – though you can still plausibly deny being middle-aged, which I cannot – but I’m afraid we’re speaking different languages. To me, one of the greatest frustrations with studying medical liability these days is that the general debate over (non-medical) tort reform has overwhelmed the health policy significance of medical liability. To health policy specialists, the medical liability system is deeply flawed in all three component parts: patient safety, liability insurance, and legal process. To general tort reformers, the whole ballgame is legal process. Small wonder that their main solution is capping damages and attorney fees or, for the more progressive contingent, chartering expert tribunals. What else would translate easily from medical malpractice to other tort reform arenas?

Physicians usually don’t notice this, because they have a long-standing, completely understandable fear and loathing of malpractice litigation. As Jay Gold pointed out years ago in an article that never got the attention it deserves, it is a difficult problem to hold experts accountable to non-experts (specialized courts being a compromise approach), and protracted adversarial litigation isn’t an appealing solution from the defendant’s perspective – or, frankly, from the plaintiff’s. Blunt deterrents to litigation such as noneconomic damage caps and the like – which I typically shorthand as MICRA-style reforms because those measures were at the heart of California’s Medical Injury Compensation Reform Act of 1975 – therefore are firmly entrenched medical lore. Those of us in the health policy community would say that doctors’ belief in MICRA is no better grounded in fact than the many equally established clinical practices that have proved ineffective over the years. But shaking the belief is hard.

Faith in MICRA is also easily exploited by the aforementioned general tort reformers. Medical malpractice is a terrific poster child for general tort reform. It offers grassroots activism from a large, well-respected contingent of medical professionals. It provokes public fears about losing access to health care (did I mention that access to health care is the most important health policy problem?). It can be cast as a morality play: “caring physicians” versus “rapacious lawyers.” And it offers a variety of sympathetic anecdotes, images, and narratives – though similar opportunities are available to general tort defenders as well (including introducing new morality players such as “greedy insurers” and “incompetent doctors”). Once the truly well-funded lobbies on both sides of the general tort reform debate mobilize – as they have during the current malpractice crisis – politicians and the public see only two options: MICRA-style reforms or keeping the current litigation system.

Your report toes this line and strongly urges MICRA-style reforms – though I notice, to your credit, that you don’t obsess over them and that you also support “medical courts” as an example of a “comprehensive” solution. So to politicians and the public, your report is mainstream. But guess what? The report would be a lone voice – far out of the mainstream – in any gathering of health policy experts interested in medical malpractice. The health policy community has reached substantial consensus on malpractice reform. Most of us believe in incremental demonstrations of various innovations that, over time, would move most malpractice cases out of the courts while doing much more to prevent medical errors, offer timely (and, indeed, capped) compensation for injury, and avoid the emotional injuries that litigation or its threat inflicts on both patients and health care providers. A minority of health policy experts remains uncomfortable with formal damage caps, even when accompanied by other measures to improve access to compensation, quality of care, or administrative efficiency. I know nobody – repeat, nobody – in my professional community who favors MICRA-style reform as a stand-alone solution.

I should add that you and I have many points of agreement, some factual and some philosophical. Regarding the former, I agree that conventional malpractice litigation serves society poorly. As examples of the latter, I generally favor market competitive solutions to social problems, and try to stay alert to the perverse incentives that litigation and regulation create in many contexts. (I might quarrel with most of your rhetorical flourishes and many of your data points, but we can go into those as needed in future posts). We are also likely to have much more in common with respect to drug product liability and managed care litigation, and somewhat more in common with respect to nursing home liability. These too can emerge in our continued conversation.

Finally, I’ll put you on notice that I have another set of fundamental issues to air with you – information and argument I expected to be central to the Trial Lawyers, Inc. project but that was absent from the health care installment. However, I’ll save that for an opportune moment.

Looking forward to your reply,

Bill