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Comment and Controversy

We need cheaper malpractice insurance, not tort reform

June 2008 · Vol. 20, No. 06
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Dr. Segal neither answers the question posed in the title of his article nor addresses what really is the common denominator when a doctor is sued: An entire industry has arisen from medical malpractice litigation. Doctors unwittingly finance it because we are scared to death not to. Lawyers and malpractice carriers create that fear.

A doctor’s lawyer is paid by the carrier, and the doctor pays his or her carrier a substantial portion of gross income. Malpractice insurance is a physician’s largest overhead—the largest overhead in health care, as a matter of fact. In return, doctors are required to attend risk-management seminars taught by lawyers. And make no mistake, it is still at the doctor’s expense even when a discount is given. Premiums go up every year no matter what.

Dr. Segal’s article speaks of consent-to-settle clauses and hammer clauses—which actually work to the benefit of lawyers and insurance companies—but never recommends that a doctor inform the carrier early in a malpractice case that he or she wants to settle to policy limits if and when a settlement is off ered. This notice works to the benefit of a doctor and virtually guarantees that the carrier will be liable if it refuses to settle and a later judgment exceeds policy limits.

The article talks about high-low agreements in cases where damages are clear but causation isn’t. These agreements essentially guarantee that no lawyer in a malpractice case loses any money.

It is as though we are party to some social contract that requires us to pay for damages when they are acts of God. We shoulder the economy of this whole industry, yet we are at its mercy.

Why shouldn’t we be able to file a counterclaim of malicious prosecution against a plaintiff and his or her attorney and have the carrier pay for it when there is clear and convincing proof that an injury was just a random occurrence and would have happened anyway? To the best of my knowledge, carriers won’t pay and no such lawsuit has ever been filed. Why shouldn’t we be able to appeal a judgment against us when there is clear and convincing evidence that the injury was an act of God and out of anyone’s control? Aren’t these standard legal procedures in other torts?

There are forms of scientific inquiry that can show clearly and convincingly that an alleged injury is a random occurrence; I offer the references below as proof.1-4 These publications also explain when to fight or settle a malpractice lawsuit.

We are the market force, and it is time that we began to act like it. If we don’t demand a fair commercial product, there never will be one. The market will respond to our demand, and the company that does so first not only will prosper but will reduce the cost of malpractice insurance for everyone.

Until now, organized medicine has only called for tort reform. It is a lower cost of malpractice insurance—not tort reform—that is in our interest. Let us start by making our demands known. The market will respond or some new organization will form that really meets our needs.

Howard N. Smith, MD, MHA
Washington, DC


1. Smith HN. Model evaluating the validity of expert testimony in medical liability cases. J Leg Med. 2005;26:207-231.

2. Smith HN. Physicians, heal thyself: an alternative strategy for solving the malpractice crisis. Contingencies. 2005; May/June.

3. Smith HN. Defeating the malpractice crisis with standardized review of expert opinions. Physician Exec. 2005;31:24-31.

4. Smith HN. Malpractice crisis: if we can’t beat them, join them. Contemp Ob Gyn. 2007;52:48-49.

Dr. Segal responds

Countersuits are an effective deterrent

I appreciate Dr. Smith’s comments. As a point of interest, the topic of the article was provided for me, and space limited what I was able to write. But let me state explicitly: I wholeheartedly agree that many cases have no merit and that physicians should have recourse for being victimized by a process that “gets it wrong” more often than not. To back that assertion, I founded an organization, Medical Justice, which pays expenses to fund viable countersuits. The organization has been in business for over 6 years. More important, the principles work. Medical Justice plan members are sued at a rate of under 2% per year. This is far lower than the frequency for non–plan members.

To read more about this approach, see my article entitled, “Prepare a defense of CP and other malpractice claims—before the lawyers get there,” which appeared in the July 2007 issue of OBG Management.

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