by Hauser MJ
Commons ML
Bursztajn HJ
Gutheil TG

As the number of malpractice suits against physicians escalates, the fear of being sued increases comparably, influencing medical decision making and often resulting in an approach known as defensive medicine. This chapter examines the phenomenon of defensive medical practice, its effects on decision making, and an alternative approach that offers better protection against litigation by fostering a collaborative rather than adversarial relationship between physician and patient.


Over the past 20 years, malpractice litigation has increased dramatically, affecting both the medical profession and the larger community. Despite the fact that litigation and claims appeared to peak around 1985 (1), the number of claims and suits could still be described as epidemic. This alarming increase has not only led to greater awareness of liability issues on the part of the public and the medical profession but has also triggered widespread (and not always realistic) fear.
  Malpractice lawsuits have high visibility, particularly those resulting in large awards. To make matters worse, a lawsuit for a large amount of money constitutes front page news, whereas a physician's exoneration in a lawsuit is often a back page entry. This asymmetry persists despite the fact that, of the approximately 6% of malpractice cases that actually get to court, 80% are won by the defendant physician (2).
  As noted elsewhere in this volume, claims of malpractice occur when "bad outcomes" are combined with "bad feelings." Litigation has become a common response to bad outcome. All doctors-even those who practice good medicine-are vulnerable to litigation. Although many physicians continue to believe that litigation is something that happens "to the others," most are keenly aware of the risks.
  The popular press frequently trumpets issues central to the question. For example, an article (3) under the heading of "Medical Malpractice Upheaval in Florida" states: "Spiraling costs of medical malpractice lawsuits and the insurance to pay the awards have reached a breaking point in southern Florida...."
  What are the effects of this view of the medical profession as a "belegaled" sect (4, 5)? One of the major effects is a distinctly defensive approach to practice, with the patients seen as adversaries long before any hint of litigation supervenes. Frequent attention in the media to the issue of malpractice may increase the level of paranoia among practitioners, in which doctor-patient relationships become doctor-customer relations or-at worst-defendant-litigant relations; and medical services are viewed as some kind of product with concomitant warranties and guarantees. Defensive practice may also usurp the clinical judgment of practitioners, and doctors may lose enthusiasm for attending to the needs of patients because of a perceived loss of autonomous control over the interaction. Nationwide, physicians have left the high risk areas of practice (obstetrics, orthopedics, and emergency medicine) or have abandoned the field of medicine entirely (6-10). Emergency rooms are difficult to staff (11), and insurance companies are accused of profiteering.
  In striking contrast, the American Trial Lawyers Association has reported that there is no crisis (12). The inference of this remarkable statement is that doctors are in no greater danger of being sued than anyone else in society and that complaints to the contrary are both unwarranted and self-serving. From the viewpoint of this association of plaintiff's attorneys, the notion of a crisis is a fantasy cooked up by physicians anxious to invoke various legal protections and to justify higher fees. Besides highlighting a source of significant disagreement between the medical and legal professions, this statement and public reaction to it account in part for the decline in the quality of the patient-practitioner relationship and for the increase in the practice of defensive medicine.


Despite the ubiquity of the phrase "defensive medicine," few studies have demonstrated concrete signs of this approach to medical practice. For the most part, articles on the subject occur as reports on isolated and current malpractice predicaments. The American Medical News features almost weekly articles on malpractice litigation. A short sampling of information gleaned from articles on malpractice provides the following data:

  -34% of physicians think the biggest problem in medicine is malpractice liability (13).
  -Between 1976 and 1986 there has been a 100% increase in claims against psychiatrists (14).
  -The victory in a lawsuit does not eliminate the detrimental psychological effects of litigation (15).
  -A fear of litigation increases the cost of medical care (i.e., more tests) without observably better results (16).
  -78% of M.D.s think fear of lawsuits leads to unnecessary testing (13).
  -OB/GYNs face a 17% chance of lawsuits in a given year (11).
  -95% of Florida's neurosurgeons have been sued (11).
  -10% of medical fees received by New York physicians go toward liability policy payments (17).
  -Defensive medicine adds $2 billion annually to medical costs in New York state (20).
  -The public is more aware of malpractice and desires compensation (18, 19).
  -Defensive medicine nationwide is costing an additional $15 billion annually (20), an amount translating to $1.19 per week for every American.
  -Physicians in 42% of all lawsuits closed in 1984 had previously been sued (21).

 Practitioners suffer from what Carol Turkington has termed "litigaphobia" (22), an exaggerated fear of lawsuit that cripples practice and does the patient a disservice. The legal system is viewed by physicians as a third party or interloper in the doctor-patient relationship. Current data leave it unclear whether the geographic patterns of litigation (higher by several orders of magnitude in some places) reflect the local distribution of physicians in particular specialties or the presence of a vigorous plaintiff's bar.


Defensive medicine is a practice of medicine centering, as its primary aim, around self-protection from liability in the event of a tragic outcome, rather than affording primacy to the patient's well-being; often it is portrayed as a mechanism to anticipate and forestall hindsight-based second-guessing of clinical decisions, e.g., whether or not to order a particular diagnostic test. Defensive medicine may alter the individual clinician's practice or the practice adopted by an entire institution.
  Defensive medicine brings with it exponential increases in the costs associated with clinical practice. Practitioners, the public, and third party insurers all experience the same impact on the price of medical care in the form of additional testing (even unnecessary testing). More importantly, fear among health care practitioners and administrators has contributed to a different kind of cost expressed in the shut-down or unavailability of services in sectors of high-risk exposure. Yet, most problematic of all, the practice of defensive medicine compromises not only the cost but the quality of care given. In short, the fear of malpractice litigation has a tangible effect on the manner in which all clinical decisions are made, not just risky ones, but all varieties, from the mundane to the most profound.
  Discussants of defensive medicine in the literature have tended to emphasize its harmful effects. For example, Simon defines the term as follows (23):

... defensive medicine refers to any act or omission by a psychiatrist that is performed not for the benefit of the patient but solely to avoid malpractice liability or to provide a good legal defense against a malpractice claim.

Although this definition refers specifically to psychiatrists, defensive medicine is practiced by physicians from every specialty, as well as by others involved in the health care industry, including allied health professionals and administrative policy makers. Furthermore, practices that are defensive in essence have been mandated in some circumstances by statute, judicial decree, or institutional regulations and policies.
  A defensive stance undermines (sabotages) one of medicine's basic tasks: providing the best possible health care. We argue that a partial explanation of this failure involves the adverse affects for defensive practice on the therapeutic alliance between doctor and patient. The defensive clinician may become less empathic, more distant, in his or her stance toward the patient. Clinicians who practice defensively tend to seek data of an objective nature in preference to the sometimes more meaningful subjective data such as psychosocial information. To put it another way, an unintimidated clinician may seek to know the patient better as a person, whereas a fearful clinician is more likely to focus and act upon test results.
 Proponents of defensive medical practice may point to one possible exception to an exclusively negative view: the notion of "defensive documentation." Physicians who defend against subsequent second-guessing in the courtroom by writing a great deal-although using up time that might otherwise be profitably put to other purposes-nevertheless may leave an improved record for future caretakers. Some clinicians claim, indeed, that by focusing their defensive posture only on documentation they can continue to look at the patient with less fearful and thus less adversarial eyes. We would challenge this view by noting that quantity is no substitute for quality. Careful documentation of the key points in evaluation and decision making offers much better liability protection than a record that bulges with indiscriminate details (but there is room for debate on this point).
  Conversely, not all thorough medical practice is necessarily defensive: many other factors inspire thoroughness, including the quest for knowledge and improved data collection, the desire to fight disease, and the belief that doing everything possible is indeed best for the patient. Such practice may be distinguishable from defensive medicine primarily in the focus of the physician's concern on the patient's care and the resulting effect on the therapeutic alliance.
  We would suggest that a good part of the blame for increased litigation may lie in the increasingly adversarial nature of the doctor-patient relationship even prior to the inherently adversarial nature of litigation proper. Defensive medicine, itself an adversarial model, may thus not only result from an increasingly litigious response to bad outcome but may actually cause such a response. An obvious remedy for this dilemma would be to improve the patient-practitioner alliance; however, in an atmosphere in which both parties are frankly suspicious of one another, it is difficult to build a mutually supportive relationship.
  More than the pain, distress, and possible morbidity from unnecessary testing results from defensive practice. The deterioration of the therapeutic alliance conveys to the patient a strong sense of the practitioner's emotional detachment; the emphasis of the doctor-patient interaction shifts from concern for the well-being of the patient to concern with the legal vulnerability of the practitioner. Thus, in a bitter irony, defensive medicine exacerbates the very problem it is designed to solve: rather than protecting the practitioner from lawsuits it may create a climate of provocation in which lawsuits are even more likely to occur, due to the bad feelings engendered by the impaired therapeutic alliance.
 The following example noted earlier may illustrate this point:

A woman went to a gynecologist for a problem and a minor surgical procedure was recommended. At the beginning of the discussion of this procedure, the physician commented, "The law requires me to inform you of certain facts about this operation." And then, in a perceptible alteration of his normal patterns of speech, the gynecologist began to chant a litany of side effects, risks, morbidity, mortality, percentages, probabilities, etc. The patient later reported that after about ten seconds of listening to this, her mind shut down entirely. "This appears to be some sort of arcane ritual! The communication was not directed to me for any benefit of mine whatsoever."

  Studies of informed consent interactions uniformly reveal how little medical information is retained and how rapidly recall of that small amount decays. Indeed, one can readily predict that, in this instance, the patient would have had almost no recall after a few minutes of any of the substantive material "shared" with her. But this regrettable result did not occur because of the physician's problems in explaining the procedure, or because of the patient's incapacity to understand it. Instead, the mechanistic, purely "pro forma" presentation of information-in sharp contrast to information shared as part of an open and honest dialogue between physician and patient-ironically defeated its own purpose in conveying information to the patient that might be used constructively in the process of making a decision about treatment. A legalistically designed attempt to give all possible information to the patient resulted in no useful information being communicated at all.
  A primitive form of defensive medicine was referred to in the old sociomedical literature as the "hanging of crepe" (24). The allusion here is to the hanging of crepe on the front door or gateposts to signify the imminent or recent death of a family member. Less metaphorically, however, this term was designed to reflect a carefully crafted pessimism, employed by the old country doctors as a strategy to protect one's reputation. The physician would paint the picture as looking as grim, dark, and hopeless, so that a bad outcome would be taken as a matter of course and a good outcome would represent a miracle of the doctor's healing power. This technique dated clearly from the pre-litigation era and-although representing a primitive form of defensive medicine-is really aimed more at reputation than at litigation. However, crepe hanging contains some elements of our current, more complex notion, the sharing of uncertainty. We now recommend that one not present either a magically optimistic or a "crepe-hung" pessimistic view of an uncertain situation, but merely a willingness to confront that uncertainty.


Social Factors

We turn now from the issue of defensive practice to a related and even more widespread phenomenon, that is, fear of liability. We will examine social, legal, and medical factors that lead to such fear.
  First, like other widespread phenomena, the medical malpractice crisis does not occur in a social vacuum: indeed, we live in a litigious climate where everyone seems to be suing everyone else on very little provocation. School districts and municipalities experience difficulties in obtaining liability insurance for otherwise ordinary services such as playgrounds, child care, and the organization of athletic activities. Ice skating rinks and bowling alleys have had to close because of the cost of liability insurance premiums. In some instances, without any signs of an increase in actual claims, premiums may suddenly double, triple, or quadruple.

  A second social force leading to fear may be the perception that the medical profession requires outside scrutiny and regulation. In this context, public awareness of malpractice suits creates a self-fulfilling prophecy: the more the public becomes aware that the medical profession is vulnerable to litigation, the more likely the number of suits is to increase. From this viewpoint, a judicial ruling by the legal system is increasingly seen as an important mechanism for regulating the medical profession.
  Another social factor relevant here is the rise of consumerism. While one might envision the informed consumer as the ideal person with whom to hold an informed consent dialogue, promoting openness in the relationship and thus staving off litigation, the rise of consumerism has at times resulted in an adversarial stance: the consumer is inclined to struggle with and resist the no-longer-authoritarian physician. As a result, the enlightened consumer is seen all too often by the physician as a problem rather than as a particularly good ally.
  An additional dimension of the problem has to do with the social aspects of medical practice itself, in the form of entitlement and elitism. Medical training is long, expensive, and usually quite grueling. This apprenticeship is commonly compared to college fraternity hazing. Those who survive the "ordeal" often feel that they belong to a distinct class, separate and different from lay persons, and that their labors have justified a kind of entitlement. Such entitlement and the heavy weight placed on the practitioners' judgment may prove alienating to patients and to the public, as well as fostering a climate of counter-entitlement on the patient's side. That is, patients may feel entitled to a perfect result.

Legal Factors

It is impossible to open many magazines today without seeing large ads in a type face suitable for announcing the arrival of World War III:



 Such advertisements support a common mechanistic model of malpractice: if there is injury, then there must have been negligence. This notion, of course, is subscribed to enthusiastically by many plaintiffs' attorneys.
 The manner in which malpractice cases are decided hinges on the concept of compensation for the victim of a bad outcome. Indeed, the simple fact that the doctor has a large malpractice insurance policy reinforces the inference in the public mind that more than adequate resources are available to pay the deserved compensation and that, psychologically, it is not really the doctor who is paying-a distortion that allows patients not to feel conflict in relation to their "biting the hand that tried (and failed) to cure them." Many inappropriate and disproportionate jury awards appear to be based on such reasoning.
  Finally, the intrusion of legal mediation between doctor and patient has clouded the question of practitioner responsibility. While many attorneys may maintain that the threat of malpractice litigation is a stimulus, by representing a perceived threat of punishment, to sound medical care, experience suggests that the intrusion of legal concepts into medical practice may paralyze flexible and patient-centered decision making to the point where it may actually be harmful to the patient. For example, needless involuntary hospitalization springing from defensive practice is costly and may be harmful to the patient.

Medical Factors

Why does medical malpractice insurance compensate individuals in the present system? In theory, such insurance is designed to protect against the risk of negligence by providing an opportunity for fair compensation when injuries occur as a result of that negligence. One of the most significant limitations of the insurance model based on fault (negligence) is that litigation in malpractice may stem in part from magical fantasies of restoring of the status quo: the fantasy, for example, that the patient who has had an amputation will somehow "get the leg back." These and related intrapsychic factors may not be satisfied by a malpractice award, which can, after all, provide only money for the perceived injury, not restoration of the limb.
  Another dimension of the problem is the third party payment system, which places both the physician and the patient in somewhat remote positions in regard to the actual transfer of money or services. The patient, all too often, does not experience him or herself as actually paying for the doctor's time: "the insurance will take care of it." A side effect of this phenomenon is that physicians may order many additional tests, including unnecessary ones, to assuage their fears of medical malpractice liability, yet may act as though no additional costs supervened.


Some fears can be healthy and can lead to adaptive responses. Let us explore the implications of the fear of being sued for malpractice as it bears on clinical work, addressing both positive and negative effects.


We would argue that the primary benefit that may derive from the fear of malpractice liability-but only when this fear is constructively and not defensively used-is strengthened therapeutic alliance between clinician and patient. Once clinicians openly acknowledge their own fears of liability, they may then choose to address these concerns by putting their energies into building mutually supportive relationships with their patients. This is the response most likely to offer protection against a suit, since it establishes good feeling between the two parties and creates an alliance capable of withstanding a bad outcome. A strong alliance serves as an anticipatory antidote to bad feelings concurring with a bad outcome.
  The therapeutic alliance promotes these "good feelings" by establishing as a shared goal the well-being of the patient. Instead of being pitted against each other as adversaries, clinician and patient can work together against the common enemy of disease.
  A healthy alliance not only creates good feelings but can also contribute to the likelihood of good outcomes, further decreasing the chances of litigation. Patients who mistrust their physicians may fail to take medications properly, or sabotage their care in other ways. They are also likely to feel helpless and out of control, a condition leading to increased stress and to potential deterioration of their actual medical status.
  Physicians can engage in a number of specific behaviors that will strengthen their relationships with patients. By sharing the uncertainty inherent in many medical situations, physicians remove themselves from the pedestal of infallibility upon which they are frequently placed and assume a more collaborative stance. In addition, patients who understand the inevitable uncertainties of their treatment are better able to give truly informed consent and to have reasonable expectations about their future health. Thus, those bad outcomes that do occur may already have been anticipated, lessening their negative impact by allowing the patient opportunities to prepare both psychologically and otherwise. Anticipation specifically prevents surprise, one of the most powerful "bad feelings" leading to litigation.
  Failure to provide adequate follow-up care, which has long been a weakness of some physicians, can obviously have negative results, ranging from continued or exacerbated health problems to a feeling on the part of the patient that the physician is not interested in his or her health. Those physicians who make themselves available for follow-up can positively influence patient feelings and outcome, thus decreasing their chances of being sued for malpractice. Clinicians have a special duty to follow up the tragic outcomes that are inevitable in medical practice. Lawsuits are particularly likely to result from cases of irreparable physical impairment or death. To militate against such suits, physicians must remain available to patients and their families, to provide continuing care and support following such a tragedy as occurred in the case example in Chapter 1. The patient (or family) who believes that the practitioner's primary concern is (or was) the patient's well-being is more likely to perceive the practitioner as having done his or her best.
  Fear of malpractice can also lead positively to an appropriate use of supervisors and consultants. Decisions made by a treatment team obviously have the potential to reach a better outcome, two heads being better than one. In addition, the support of other physicians can serve to mitigate liability in the case of a lawsuit.
  Finally, under appropriate circumstances, fear of liability may lead to improved training, as long as that training does not result in either instruction or modeling by faculty of excessive defensiveness in the ordering of tests and use of protective procedures. Ideally, training should focus on the importance of building a therapeutic alliance with the patient and of viewing informed consent as a process in which patient and physician engage in an open dialogue, rather than as merely a signature on a form.

Adverse Effects

Perhaps the most far-reaching negative result of fear of malpractice liability is an alteration in the clinician's stance toward the patient, as addressed earlier. The focus of clinical practice may shift from the patient's well-being to legal self-protection. Thus, the physician views the patient as a legal case posing a certain risk, rather than as a suffering person in need of care. The physician-patient relationship may be so transformed as to undermine the alliance entirely, so that the two parties assume adversarial roles, each trying to protect himself or herself from the other.
  One of the best-known problems arising from defensive medicine is the increased use of needless tests or overly conservative hospitalization. In their efforts to protect themselves from lawsuits, physicians often shift their focus from the patient to the data. The desire for certainty in making a diagnosis is understandable; however, there is a point at which the danger and cost of additional tests come to outweigh the benefits. All tests involve some degree of risk, and for some procedures that risk is substantial. Thus, the marginal value of further information may not be worth the increased risk to the patient's well-being.
  Furthermore, it is simply impossible to eliminate all uncertainty, regardless of the number of tests given; often it is unclear whether or not additional tests will be helpful. Physicians and patients both need to understand these limits, to acknowledge that judgment calls are required in medicine as in other professions, and to share-and thus, to tolerate better-the uncertainty from this limitation. Patients who are misled into believing that tests can provide absolute accuracy about their health may be more likely to sue if these tests later fail than those patients who understand the inherent limits of testing and diagnosis.
  In psychiatry a defensive response might include a needlessly low threshold for involuntary hospitalization, where the patient's liberty and autonomy are, in essence, sacrificed in favor of conservative practice for the sake of self-protection.
  An extreme example of defensive medicine is abandonment. In this case the physician decides that the risk of a lawsuit in treating a particular patient is too great and responds by terminating the relationship entirely: "dumping" or "turfing" the patient. The bad feelings that such behavior is likely to engender on the part of the patient may be very strong, and thus the risk of a lawsuit may increase dramatically in such situations.

An Empirical Study

The literature as a whole has not addressed the ramifications of fear of malpractice liability in clinical decision making. While we do not have data from the front lines of practice, we did conduct a pilot study to examine these effects. Specifically, we wanted to test the hypothesis that the fear of being sued for malpractice changes the way clinicians deal with patients. In other words, we studied how physicians cope with anxiety and responsibility in cases where malpractice liability is an issue.


We developed questionnaires for administration to clinicians in these areas of practice: surgery, medicine, and psychiatry. For each area, a hypothetical clinical vignette was presented, involving a diagnostic dilemma and a potential tragic outcome. Surgeons were told about abdominal pain and asked about a surgical emergency. Internists were told about angina and asked about myocardial infarction. Psychiatrists were told about a depressed patient and asked about suicide (see Appendix 11.1). Half of the vignettes noted that the patient in question was currently suing a previous clinician. In the other half, there was no mention of a suit. A series of questions followed the vignettes:

  -What further information would you require to make clinical decisions?
  -Which tests would you order?
  -What consultations would you request?
  -Would you admit the patient to the hospital for inpatient assessment and treatment?
  -What estimate would you make about the probability of a tragic outcome?
  -Would you continue to provide care for the patient?

 The questionnaires were administered in two settings: to a group of family practice residents in Idaho and to a variety of clinicians at Beth Israel Hospital in Boston, Massachusetts, including residents and faculty in the departments of surgery, medicine, and psychiatry.
 We predicted that those clinicians who were informed that the patient in question was suing another physician would order more tests, request more consultations, and be more willing to hospitalize and less willing to follow patients themselves than clinicians who were not told about a suit.


Respondents requested more information in almost all cases, regardless of whether or not they were told about a suit. However, the type of data requested varied in significant ways. The group of clinicians who were not told about a suit tended to request more information of a psychosocial nature, whereas those who were told about a suit asked for more objective data, requested more consultations, and were more likely to recommend admission. In addition, the clinicians who knew about the suit were most likely to predict a tragic outcome. The two groups of respondents did not differ appreciably in terms of the number of laboratory tests they would order or whether they would continue to provide care for the patient.

Discussion of Study

We hypothesized that the incidental mention of a suit in a patient's presentation would increase the perception of a liability threat and that some signs of defensive practice would be evident in response to that threat. While this proved true, the differences between the two groups of respondents were not as dramatic as we had expected. It may be that clinicians have already been fully sensitized to the threat of malpractice litigation by previous experience and by exposure to the professional literature and to the media, and were further alerted by the sparse clinical data in the vignettes. Practice patterns and clinical decision making may, therefore, have already been influenced significantly, perhaps even maximally. Therefore, clinical judgment may not be subject to provocation by selected information in the hypothetical case.
  Nevertheless, more consultations were requested by respondents informed of a suit. This may reflect a greater wish to share responsibility for the patient care or even an attempt to avoid responsibility and increase self-protection. Respondents told of a suit also were more likely to recommend for admission, perhaps reflecting the desire to cover all bases and to share, or avoid, responsibility. In addition, estimates of the probability of a tragic outcome were higher in this group, confirming a finding described elsewhere (see Chapter 10): clinicians tend to overestimate the likelihood of tragedy in the face of uncertainty, here generated by the threat of suit. One might worry that this tendency decreases investment in the patient or in the success of treatment.
  The question about remaining the provider of care yielded interesting findings: clinicians who knew of a suit were not unwilling to remain providers of care. Numbers of years in practice and status as a trainee appeared to be significant factors: almost all residents were willing to provide continued care, whereas faculty often were not. This finding may reflect changes in training programs and personal ideals.
  In our study, clinicians were asked to make decisions on the basis of incomplete data. They responded by requesting more data, a reflection of clinical curiosity, the wish to obtain maximum information before making a decision, and a desire to see the "full picture" to decrease uncertainty. The focus of curiosity shifted, however, with the knowledge that the patient was suing another physician, from psychosocial information to objective data. This finding highlights a subtle but dangerous form of defensive practice: by relying on ''scientific'' data, the clinician retreats to a "legal" distance, perhaps (at an extreme) losing interest in the patient as a person and, thus, abdicating a clinical position in favor of a legal one.


As medicine becomes more complex, as diagnoses become both more arcane and obscure, the average patient will face an increasingly difficult process of decision making. Even with expert systems and computer-aided diagnostic procedures the core decisions will be made in a familiar arena-the doctor-patient relationship. Clinicians must be taught that good practice is the best antidote to malpractice accusations. Explicit information about the physician-patient relationship, the therapeutic alliance, and informed consent must become part of standard curricula and clinical instruction. The patient's experience of illness and similar factors must also become part of the doctor's fundamental training. By diminishing the fear of liability, this instructional process will mitigate the destructive effects of fear on the physician-patient relationship.
  Public education, too, can play an important role, if carefully addressed to the limits of certainty, of collaborative decision making, and the function of informed consent as a dialogue about uncertain outcomes. Such steps may improve the patient's end of the alliance, with salutary results as above.
  Role playing and hypothetical scenarios, such as those used in our study, might increase physicians' empathy and perspective taking, which may in turn foster alliance building. While the essential part of the alliance does not necessarily derive from the doctor's experiencing what the patient is experiencing, attempts at altering the doctor's role may be of some value.
  An important consideration is the lack of alternatives for patients who wish to object to the care they receive or its outcome. Litigation is certainly one way to be heard. But alternative channels might be provided to draw off the bad feelings in ways that satisfy' patients and influence physicians but avoid litigation. Such alternatives may shift the focus away from purely monetary damages and offer pathways for the expression of legitimate feelings and concerns. Additional advantages may accrue from no-fault insurance of victim-compensation models, which might clarify' issues or injury and cost in ways that avoid disproportionate jury awards. Whether the public will support such changes remains to be seen.


  1. Hilliard J. Personal communication regarding Joint Underwriters Assn., 1988 data.
  2. Estimated Data.
  3. Ingwerson M. Medical malpractice upheaval in Florida. Christian Science Monitor Jul. 7, 1987;3.
  4. "Belegalment" still hounds U.S. psychiatry. Psychiatric News Dec 5, 1986; 12.
  5. Rappeport JR. Epilogue: we are belegaled. Simon RI, ed. Clinical psychiatry and the law. Washington, D.C.: American Psychiatric Press, Inc., 1987:467-468.
  6. Family M.D. gives up deliveries. American Medical News Aug 15, 1986;2.
  7. Rate hike may force OB's from state. American Medical News Jul 18, 1986;3.
  8. Ga. ob-gyns refuse to treat lawyers who've filed suits. American Medical News June 13, 1986;4.
  9. Rowan CT. Malpractice-suit madness. American Medical News June 13, 1 986;4.
  10. Texas liability survey shows physicians limiting practices, adding tests and procedures. American Medical News Jan 9, 1987; 12.
  11. Patients, M.D.s relate effects of liability situation. American Medical News May 23, 1986;27.
  12. Taylor S. Jr. Lawyers deny crisis in medical malpractice insurance. New York Times Mar 7, 1985;A16.
  13. Public has changed its thinking on malpractice crisis, survey results show. Psychiatric News Jan 2, 1987;29.
  14. "Belegalment" still hounds U.S. psychiatry. Psychiatric News Dec 5, 1986; 13.
  15. Wassersug JD. Tips on facing malpractice suit. American Medical News Aug 22/29,1986;17.
  16. Owens, A. Will defensive medicine really protect you? Medical Economics Apr 18, 1988;88-1OO.
  17. Liability policies cost N.Y. doctors 10% of their fees. Hospital Tribune Mar 12, 1986;15.
  18. Hearings held on Hatch's malpractice reform bill. Psychiatric News Oct 3, 1986;XXI (19): 1. quoting Senator Orrin Hatch (R - Utah): ". . . the general public expects 'immediate medical miracles' and demands 'compensation for anything less.'"
  19. Glass J. Malpractice as an M.D.-attorney sees it. Hospital Tribune Mar 12, 1986;15, quoting Dr. Harvey Wachsman: "The public is far more aware today than years ago and wants compensation if mistreated."
  20. Alarm over malpractice. Time Jan 28, 1985;75.
  21. Malpractice: hospitals likely focus of govt. action. Clinical Psychiatry News, July, 1987;6.
  22. Turkington C. Litigaphobia: practitioners' exaggerated fear of lawsuits cripples them and does patients a disservice. The American Psychological Association Monitor Nov, 1986;17, (11).
  23. Simon RI. Clinical psychiatry and the law. Washington, D.C.: American Psychiatric Press, Inc., 1987:29.
  24. Siegler M. Pascal's wager and the hanging of crepe. N EngI J Med Oct 13, 1975;293 (1 7):853-857.

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