In response to:
'Life Without Lawyers': An Exchange from the May 14, 2009 issue
To the Editors:
Anthony Lewis, in his review of Philip Howard’s Life Without Lawyers [NYR, April 9], states that “lawsuits are often a substitute for safety nets.” What kind of substitute are they? Does the fear of lawsuits increase the chance that a doctor will want to care for a difficult patient? Do lawsuits increase access to health care? Do they make health care more affordable? Do they make health care safer? Do lawsuits ensure a fair compensation for those who have a bad outcome from medical care? Do they remove substandard physicians from practice? Have lawsuits improved the doctor–patient relationship? The answer to each of these questions is an emphatic “No.”
The tort system as it applies to medicine has made medicine less accessible, more expensive, less empathic, and less safe. Physicians are less likely to care for sicker, more complicated patients and those who are uninsured or underinsured. A major cause of the escalation in health care costs is excessive and imprudent test ordering by physicians who fear litigation….
In our current system, patients who have experienced true medical malpractice may go uncompensated, while large awards are given out when no malpractice occurred. Because medical malpractice is a civil issue, it imposes no restrictions on truly substandard physicians and they may continue to practice. By any measure, our legal system has failed to improve patient safety and has greatly increased the cost of health care….
If President Obama is serious about making our health care system comprehensive, affordable, and safe, he needs to look at the performance of all its components. Certainly, physicians and hospitals need to improve their processes and performance. Insurance must be inclusive and affordable. Patients need to take more responsibility for their health and utilization of resources. And ensuring safety in medical care must become less expensive and more accurate. Lewis may be correct that Americans like a chance at the “lottery,” but they cannot afford the enormous cost of that lottery ticket and its adverse effect on their health care.
Thomas J. Donnelly
Anthony Lewis replies:
Mr. Donnelly’s words are pungent and in good part persuasive. In all of American tort law, medical malpractice seems to me the worst fit with society’s needs. It is a crude instrument, but it does compensate some genuine victims—and we should not abandon it unless a better alternative is functioning. Mr. Thomas’s rundown of what needs to be done well shows what a challenging task it is. But I agree: let us begin.