The Physicians' Point of View Concerning Medical Malpractice: A Sociological Perspective on the Symbolic Importance of 'Tort Reform'

Abstract

From the physicians’ point of view, flaws in the tort system have caused medical malpractice claims to reach or approach a level that is so excessive that intolerably high premiums for malpractice insurance have resulted or will result. Their cure for this problem is “tort reform,” which physicians believe will not only help prevent “frivolous” claims, but also hold individual claim awards to reasonable amounts. These views are understandable; claims levels and insurance premiums have increased, and it is at least plausible to assume that “tort reform” could solve the problem. Initially, however, it is hard to understand why the medical profession has shown very little interest in systematic studies which indicate that premium costs are not excessively high nationally and that most “tort reforms” will have very little effect on claims costs. Disagreement and dispute concerning these studies would be expected, but lack of concern about the need for or the effectiveness of reform is surprising. This lack suggests that other concerns are involved and indicates the need for a study of the physicians' point of view concerning “tort reform.”

This Article argues that the combination of physicians' certainty of the need for “tort reform” and simultaneous lack of interest in the utility of such reform can be understood only by adopting a sociological perspective. Such a perspective is necessary because the economic impact of the increase in insurance premiums on most physicians is not adequate to explain the physicians' intense concern for “tort reform.” Once it is understood that affordability of malpractice premiums is not really the problem, it is no longer puzzling that physicians have shown virtually no interest in the effectiveness of “tort reform” in limiting premiums. Instead, it becomes clear that “tort reform” functions as a symbol used by physicians to register their protest against a broad range of changes in the American health care system. Physicians are seeking social support for a symbolic reaffirmation of their role and importance in society. Consequently, from their point of view, opposition to the fairness or efficacy of the reform proposals is tantamount to opposition to the medical profession.

Keywords: tort reform, law and politics, law and culture, law and society, tort theory, tort goals, legislation, tort legislation, role of courts, jurisprudence, legal theory, medical malpractice reform, law and sociology