Professor Richard Epstein of the University of Chicago published an opinion piece in yesterday’s Wall Street Journal on medical malpractice.
"Embarrassingly ignorant" would be a charitable description. Eric Turkewitz calls it "flat out false."
How bad was it? Turkewitz caught two outright falsehoods:
American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury.
American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury.
Neither of these are true, as described in Turkewitz’s article.
But it doesn’t even end there. Here’s another line:
American judges frequently let juries decide whether honest mistakes are negligent.
It is hard to put into words how embarrassing, shocking and insulting it is to see a law professor who has written textbooks on torts question how we (or who we let) "decide whether honest mistakes are negligent."
An "honest mistake" is negligent. It’s what it means to have been negligent: you made a mistake. You neglected your duty. You failed to exercise the care that a reasonable, prudent person would exercise under the same circumstances. If a physician had intended the harm, it wouldn’t be medical malpractice, it would be battery, an intentional tort.
And that is how it should be: a physician should be responsible for damages they caused the patient by neglecting their duty. If the patient neglected to drive safely, ran a red light, and injured the physician, the patient would be responsible for the damages they caused the physician. It’s why we have insurance: to pay for the damages we mistakenly cause others.
Putting aside Professor Epstein’s "honestly mistaken" description of medical malpractice law, let’s consider his solution to the "disturbing" medical malpractice system (which he vaguely and ridiculously concludes causes a full 10% of US health costs by way of defensive medicine):
What is needed is the replacement of juries with specialized commissions like those in France, which help reduce litigation expenses and promote uniformity in case outcomes across regions.
Naturally, Epstein doesn’t go into any detail about his proposal, so there’s nothing even to critique.
On the subject, however I recently noted that Philip K. Howard’s health courts proposal (in the New York Times) was "unlikely to make results any more ‘reliable’ than now, unless you presume that judges are systematically biased in favor of one side or the other" and that "Howard’s process for choosing a ‘neutral’ expert and the materials they opine on will probably make medical malpractice litigation more contentious, expensive, and uncertain."
Epstein’s ephemeral proposal would likely suffer the same problems if he actually spelled out the details. But he has no need to worry about that, he can just ‘negligently’ draft a new column filled with errors about some other field of law.
Finally, he concludes:
The best reform would be to allow physicians, hospitals and patients to contract out of the liability mess by letting the parties reject state-imposed malpractice rules. They could, for example, choose to arbitrate, to waive jury trials, or to limit damage recovery. Stiff competition and the need to maintain reputation should keep medical providers in line in such a system.
That is to say, Epstein wants to transplant to medicine the same fine extrajudicial system we use for credit cards, used car buying, and check-cashing.
Thanks, but no thanks.