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Stephen J.LurieMD, PhD, Contributing EditorIndividualAuthorPhil B.FontanarosaMD, Executive Deputy EditorIndividualAuthor
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.
Gostin LO. The Past and Future of Medical Malpractice Litigation—Reply. JAMA. 2000;284(7):827–829. doi:10.1001/jama.284.7.827
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