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August 16, 2000

The Past and Future of Medical Malpractice Litigation—Reply

Author Affiliations

Stephen J.LurieMD, PhD, Contributing EditorIndividualAuthorPhil B.FontanarosaMD, Executive Deputy EditorIndividualAuthor

JAMA. 2000;284(7):827-829. doi:10.1001/jama.284.7.827

In Reply: Dr Migden expresses common, and understandable, frustration with the medical malpractice system in the United States. However, his implied solution, that physicians should not provide expert testimony in negligence cases, is not reasonable. In making his arguments, Migden compares expert testimony with peer review. While I certainly understand the analogy, it is not sound.

These 2 systems—medical malpractice in the courts and peer review in hospitals—are intended for different, but related, purposes. The peer review system is not designed to absolve physicians from responsibility for their negligence, although that is sometimes the result. Rather, peer review (and the associated legal privileges given to it) is intended to encourage honest and full reporting of adverse events by physicians and careful evaluation of quality by hospitals. Peer review provides an opportunity for health care organizations and physicians to learn from their mistakes and put in place systems to reduce future risks to patients.

Medical malpractice, on the other hand, is designed specifically to determine fault and allocate liability. Physicians may not like the current medical malpractice system, but the appropriate response is to seek national reform. It is surely not appropriate for physicians to engage in a concerted "code of silence," by refusing to testify in cases in which their colleagues may have acted wrongfully. It is ethical for a physician to give an honest and fully informed appraisal in a court of law by acting as an expert witness.

As for reform of the medical malpractice system, I agree that enterprise liability or "no fault" insurance would be a good place to start. An even better solution would be to develop a public health approach to reducing medical error to prevent avoidable harm to patients in the first place.