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Comment & Response |

We Have Strict Statutes and Most Biting Laws—Reply

David A. Hyman, MD, JD1; William M. Sage, MD, JD2
[+] Author Affiliations
1College of Law and College of Medicine, University of Illinois, Champaign
2School of Law, University of Texas, Austin
JAMA Intern Med. 2014;174(7):1203. doi:10.1001/jamainternmed.2014.765.
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In Reply Dr Harris’ calculated lifetime risk is similar to the results of a study done by Jena et al.1 Using data from a single large malpractice insurer, Jena et al1 calculated a 76.7% lifetime risk of a medical malpractice claim for physicians practicing family medicine and a 88.5% lifetime risk for physicians practicing internal medicine and subspecialties. The lifetime risk of a medical malpractice claim for physicians practicing obstetrics and gynecology (97.2%) and general surgery and surgical subspecialties (98.4%) approached certainty. We are currently conducting a study of this issue using closed claims data from Illinois.


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July 1, 2014
Rebecca Arden Harris, MD
1Department of Family and Social Medicine, Albert Einstein College of Medicine, Montefiore Medical Center, Bronx, New York
JAMA Intern Med. 2014;174(7):1202. doi:10.1001/jamainternmed.2014.767.
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Malpractice claims harm innocent physicians, too
Posted on July 17, 2014
David L. Keller, MD
Conflict of Interest: None Declared
Hyman states "most [malpractice] claims do not result in payment, and malpractice insurers almost always cover the entire cost if a payment is made" in implying that "1 malpractice claim over a 40-year career" should not be sufficient to justify defensive medicine. This statement ignores the harms to a physician who is found innocent of malpractice, or even dropped from a lawsuit before trial. There is a great deal of uncompensated time away from practice, resulting in lost income. The innocent physician's malpractice insurance rates will be raised due to the money spent defending him. A tort system based on loser-pays is used in nearly every other Western nation, resulting in far fewer false claims of malpractice. Victimized patients are not harmed by loser-pays because plaintiff attorneys compete for strong cases by indemnifying the plaintiff patient and accepting contingency payment. Loser-pays weeds out the weak, speculative and nuisance malpractice lawsuits which should never be filed in the first place.
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