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This chapter presents general and specialty-specific issues leading to malpractice litigation. Strategies for decreasing medical error and preventing malpractice litigation are outlined with emphasis on accurate documentation, review of clinical information, selection and appropriate use of consultants, and above all, communication to the patient and family. The need to continue learning from national care guidelines and specialty-specific publications is emphasized.

Breast cancer is the most common diagnosis in medical malpractice claims in the United States. This chapter analyzes 100 consecutive breast cancer claims from The Doctors Company, a large national medical malpractice insurer. Factors that contribute to this high claims frequency include patient discovery of the breast mass, delay in diagnosis, mammography communication errors, patient age, tumor size, and tumor stage. The potential for computer-aided detection to reduce mammography interpretation errors is discussed. Finally, pathology claims involving breast biopsy and fine needle aspiration are analyzed and strategies are presented to minimize diagnostic error.

This chapter reviews The Doctors Company experience with medical liability claims involving the Pap smear. The historical factors leading to the explosive growth in Pap smear litigation are discussed and an expert medical panel’s analysis of the sources of error in the Pap smear are presented in detail. The panel’s recommendations for reducing the Pap smear’s inherent false-negative rate, thereby decreasing patient injury from “missed” cervical cancers and their precursors, are reviewed. Finally, new technologies and strategies that enhance the Pap test’s sensitivity (liquid-based cytology and DNA testing for human papillomavirus) are presented.

The great majority of claims against plastic surgeons are concentrated in less than 10 procedures, all of them elective or aesthetic. Because the patient is the ultimate judge of satisfaction in the outcome, there is a greater burden of responsibility on the surgeon for patient selection, preoperative disclosure, and documentation. The essential elements of each are reviewed, as are the current standards of care for the specialty.

The rising cost of claims has fueled a dramatic rise in the cost of medical malpractice insurance in the United States. Increasing severity has driven malpractice tort costs beyond $20 billion per year. A significant percentage of America’s doctors are defendants in malpractice litigation and more than 600 new claims are initiated daily. Malpractice claims do not reliably identify “bad” doctors. In high-risk specialties, virtually all physicians are potential litigation targets. Other factors contributing to the increased cost of malpractice insurance include falling interest rates, higher costs for reinsurance, shrinking capacity, and judicial nullification of existing legal reforms.

More than a quarter century’s experience with California’s Medical Injury Compensation Reform Act (MICRA) statutes provides ample evidence that reforms are well defined and effective. In the absence of these reforms, it is predictable that the current crisis will worsen and access to fundamental medical services will be increasingly imperiled.

Since the 1980s, empirical analyses of the system of medical malpractice have revealed that it largely fails to provide reasonable compensation for injured individuals, or to provide appropriate incentive for safety and prevention. The most promising approaches for reform involve fundamental system changes rather than tinkering with tort doctrine.

Medical malpractice is the “Rip van Winkle” issue in American health care. However, its periodic awakenings depart from those of its fictional counterpart in an important respect. Neither the participants in the medical malpractice system nor outside observers seem aware that the context for minimizing medical errors, improving legal dispute resolution, and keeping liability insurance available and affordable has changed. This chapter explains why the public policy of medical malpractice is so poorly connected to overall health policy. It examines three aspects of health system change since the 1970s—medical progress, industrialization, and cost containment—that have exposed serious weaknesses in the medical liability system. It suggests ways to convert liability into a general health policy issue, including having the federal government implement a system of error identification, fair compensation, and efficient dispute resolution that would apply to Medicare and Medicaid patients.