Medicine is crucial to our society. It is hard to deny that we have not benefited from the lifesaving interventions that help extend and improve lives. However, medicine has complicated ethics, especially regarding its regulations. When people are given the ability to modify the bodies of others, we must protect patients from the inevitable malevolent actor who will abuse this power. Thus, medicine has become an incredibly regulated and litigated field. We need these policies to protect patients, and most of these regulations were created with noble intentions, however they have left the doctors who perform lifesaving care vulnerable to the system’s abuse. The US healthcare system spends $55.6 billion dollars annually on malpractice liability, accounting for 2.4% of healthcare spending. This includes practices intended to prevent malpractice lawsuits and those intended to address lawsuits. One such item is malpractice insurance, which pays for settlement or verdict payments in the event a doctor is involved in a medical malpractice suit. On average, doctors pay $8,000-$12,000 a year for medical malpractice insurance, with high risk specialties like surgeons typically paying $30,000-$50,000 a year and OB/GYNs (obstetrics and gynecology) often paying anywhere from $40,000 to $200,000 depending on the region. On average, this accounts for 3.2% of a physician’s income, and potentially much more (for example an OB/GYN in a metropolitan area may pay as much as 40% of their income to medical malpractice insurance). According to the American Medical Association, 31.2% of physicians reported having experienced a lawsuit at some point in their career as of 2022. This figure includes all doctors, including those too new to have had much of a chance to experience a suit, so the figure by the end of a physician’s career is likely much higher. Interestingly, the divide across specialties is very notable. Those with the lowest risk were allergy & immunology (7.1%), hematologists & oncologists (8.0%), and endocrinology (8.6%), while those with the highest risk are orthopedic surgeons (47.2%), other specialized surgeons (55.5%), general surgeons (59.3), and OB/GYNs (62.4%). The current American medical malpractice system creates an environment hostile to the very people trying to provide care by financially incentivizing patients to sue regardless of whether their claim has legal backing and by disadvantaging the defendant in the legal process. 

Medical malpractice law is designed in a way that almost always benefits the patient regardless of their claim’s validity. When a lawsuit occurs, the lawyers of both parties have two options: go through the full lawsuit process or make a settlement. If the case goes to court, then both sides will present their arguments. If the patient wins, they will receive compensation for the harm ruled to have been done (on average around 1 million dollars), and typically they will pay their lawyers a percentage of this amount, while the doctor will use their malpractice insurance to cover their lawyer fees and the payout to the patient. If the doctor wins, they still have to use their insurance to pay for their lawyer fees, while the patient typically does not have to pay anything to their lawyer. If both parties agree to the second option and settle the case, then the patient receives a smaller amount of money (on average $329,000 according to a JAMA study) while the doctor, once again, has to use their insurance to pay lawyer’s fees and the payout to the plaintiff. While it may seem like the doctor pays no money either way due to insurance coverage, the high claims rates are the reason that insurance coverage is such a large portion of some doctors’ income, many policies have co-pays in which the doctor has to pay some money out of pocket to help cover costs, and some policies have a maximum they will pay, leaving the doctor to cover the rest. However, as for the patient, they can only gain money. Because of this situation, approximately 97% of malpractice cases are settled outside of court since it is often less expensive for the doctors (and the insurance company) to settle rather than go through the legal process, even if they were to win the case. Since patients are essentially guaranteed a payout in settlement, they are also motivated to settle the case. Additionally, since the doctor wins around 79% of cases, a patient has a higher expected value of payout if they settle the case compared to bringing it to court. This leads to the patient benefiting essentially regardless of whether they had a valid claim or not. This creates an environment in which malpractice law firms and patients are motivated to abuse malpractice law in order to enrich themselves at the doctor’s expense. An analysis published by the NIH found that over 60% of filed lawsuits are dismissed before they even go to trial due to a lack of valid grounds. This figure does not include settlements, suggesting that some cases that are settled aren’t even legally valid. But still, even when the case is dismissed, the patient gets off free while the doctor and their insurance still has to cough up money for expenses, even though the doctor did exactly nothing wrong. Additionally, patients are often encouraged to sue in any situation an adverse result occured– a severe drug side effect, an unforeseen complication, when a treatment is unable to completely cure a condition– even though a Harvard study found that only 27.6% of these are actually due to negligence. Additionally, another Harvard study found that only 15% of medical malpractice cases have evidence of negligence, while a Congressional Review found a figure of 20%. These figures demonstrate the sheer scale of malpractice cases that are either mistakes or just flat out abuse of the system. This may also explain the disparity in lawsuits across specialities. It is not because the doctors in these fields are less competent than others (in fact they are actually more extensively trained than many other specialities), but because they have a higher risk of unavoidable complications. As nice as it would be to believe all these cases lacking in merit are just honest mistakes, considering the fact that trained attorneys look over these cases to determine their validity, it becomes clear that much of this is plain and simple abuse. Since so many suits end up settling, a plaintiff can file a frivolous suit and still get a very large payout. The system just isn’t designed to prevent this abuse, rather, it actually incentivizes it. The patient is never punished, but the doctor always is. Thankfully, this actually has a fairly simple solution: medical tort reform. Tort reform is essentially making changes to the civil law system with the aim of making it more equitable and accurate in its results. In this instance, a policy could be implemented in which the losing side would pay the other’s lawyers fees, so that more cases would go to court where it could be determined if fault truly occurred. Since in an ideal world a case with no merit would lose in court, it would be financially ill-advised to file a frivolous case, allowing our legal and medical system to spend their money and time on more important things and preventing abuse. While many opponents fear this system would prevent valid cases from going to court, since only the loser would pay, it shouldn’t hurt the patient since if their case actually has merit, their case should win and the patient wouldn’t pay a dime. This would allow our legal system to bridge the balance between protecting the safety of patients and safeguarding the rights of doctors. 

Unfortunately, even when medical malpractice cases do go to trial, physicians still face obstacles to a fair legal process. If a medical malpractice case were to go to a jury trial, potential jury members are vetted by both the prosecution and defence, and if either uses their pre-emptive challenge to try and reject a priorly approved member from the jury pool, the candidate will not be a member of the jury. Often in a medical malpractice case, this involves looking for a clear bias either for or against the doctor/patient. While lawyers are not legally allowed to exclude a potential jury member solely because of their profession, doctors or other healthcare workers very rarely become jury members in medical malpractice cases, even when considering their relative prevalence in the population. The reason cited for this is that they cannot exclude their own medical knowledge when judging the evidence in the case or that they would have increased sway with the jury. However, this is really just a convenient proxy for profession. There could be a potential jury member who knows a lot about medicine and health for other reasons– maybe they are related to a health professional, have been a patient themselves a lot, or are just simply interested in medicine, so should they also be eliminated from consideration? If someone has a naturally persuasive or authoritative personality that makes people believe them easily, does that mean they should be excluded from the jury selection process? It appears that in most cases the answer would be no, but if you add a “Dr.” at the front of the juror’s name, suddenly the answer becomes a resounding yes. This brings us to an interesting point of contention: is a jury of zero doctors really a jury of the defendant’s peers? Pretty much any jury member you could select in the US has had at least some limited experience of being a patient, though some more than others. This gives them some automatic sympathy towards the patient, in addition to the sympathy an ill or injured person tends to incur. The doctor, however, does not receive these sympathies, and lacks the relatability of the patient. Placing a healthcare worker would help to balance out these inevitable pro-patient opinions, and would provide the doctor actual peers to put on the jury trying them with potentially career-damaging consequences. Additionally, doctors and health care workers’ knowledge can actually help provide equitable trials. Most medical malpractice trials involve expert witness testimony as a central part of the arguments. These are other doctors who act as an independent reviewer to testify what should have been done in the situation and whether the doctor is at fault. However, these reviews are highly subjective and often differ between witnesses, with both sides typically employing them, but each with a vastly different conclusion. The jury then must decide from the evidence from other sources and the two accounts provided whether the doctor is innocent or not. Since these are expert opinions, they tend to be heavy in medical-specific terminology and in order to fully understand require knowledge of human physiology, medicine, and hospital protocol. Non-doctors often lack sufficient amounts of this, while a doctor would be able to understand what this testimony means and how it sits into the context of the other evidence, giving them a better perspective on what is actually occurring in the case. Malpractice cases have enormous financial and even potential career ramifications, so jury members cannot afford to make a wrong decision purely because the evidence presented was far beyond their depth. To solve this, policies can be implemented that help limit the exclusion of doctors from juries based on proxy characteristics, or, advisory juries (those composed solely of experts to advise the judge on a ruling) could be implemented. Advisory juries are commonly used in highly technical areas of law such as patent law to ensure that lack of understanding is not an issue in cases. One of the primary counterarguments to the use of advisory juries in medical malpractice trials is fears that a jury entirely of medical experts would be biased to side with the doctor, but advisory juries could also be set up to include patient advocate and patient care experts, as well as those very familiar with medical malpractice law in order to create a balance of opinions that represents both sides of the case and is qualified enough to make a sound judgement a judge can use to create the final verdict.  

Medical malpractice law is a necessary part of our legal system, and one that we need in order to protect patients from genuine cases of negligence or intentional malpractice. However, we also need to ensure that this system protects doctors from those who try to abuse the system for their own personal profit. A reduction in unfair malpractice suits and verdicts would reduce costs not just for hospitals and doctors, but also as a result the patient. Additionally, it would create an increased atmosphere of trust between the patient and doctor when they no longer must regard each other with suspicion and help relieve doctor shortages by making some of the most commonly litigated fields more welcoming to new doctors. Physicians keep us healthy and save millions of lives globally. The vast majority of doctors care about their patients and are motivated by their desire to help people get well and fully live their lives. It is time we pay a little care to them and their rights too. 

This article was edited by Amaan Musani