The Physician may be a Patient

July 9, 2009
Doctor and Patient
When Doctors Make Mistakes
By PAULINE W. CHEN, M.D.

I met Ed (not his real name) during internship, the year after we both graduated from medical school. Built like a competitive wrestler, Ed was an Ivy League college graduate and one of his medical school’s top students, a 27-year-old who wanted nothing more than to become a general surgeon. Like me, he was enamored with the fearlessness that seemed to characterize the specialty. At a dinner during our first month on the job, Ed told the rest of us, “I love that nothing scares a general surgeon.” A dreamy look passed over his well-chiseled face as he continued, “They can take care of it all.”

Ed was determined to be that kind of surgeon and applied his intelligence and good nature to the huge workload we always had at hand. One night when I was on call I found Ed, who was supposed to have gone home for the night, in a patient’s room. A small mound of discarded alcohol swabs, blood-stained gauze pads and used test tubes stood by his side as the patient, an older woman, laughed and encouraged him on. When Ed saw me, he smiled sheepishly. “I never learned to draw blood in medical school,” he said. “It takes me a few tries.” The patient patted Ed’s hand and nodded as he continued, “If I can’t draw blood, how am I ever going to be able to operate?”

But several months later, I learned that Ed had gotten in trouble one night for not responding to a nurse’s page about a critically ill patient. “He must have been overwhelmed,” I thought, remembering that only a few nights earlier I had likewise forgotten a nurse’s request after several trauma patients rolled into the emergency room and I never returned to the wards as promised. I silently vowed to do better the next time and now hoped that Ed would do the same.

But a couple of weeks later, I heard that Ed overslept and missed morning rounds. A month later he was publicly reprimanded for examining and placing undue pressure on a patient’s freshly sewn incision. And a month after that, he was placed on probation because he had pulled a surgical tube out of a patient when it should have stayed put.

Suddenly it seemed as if Ed, the promising young surgeon, had disappeared into a vicious cycle of errors and mishaps and couldn’t pull himself out.

But Ed, the friend, had gone missing, too. He stopped smiling when we passed one another in the halls and refused to meet up with the rest of us for meals. “I’ve got to read,” he would say, his face stony. “I’ve got to study.” He still roamed the wards at all hours, but now he was like a man possessed. With his list of patients crumpled in one hand and a pen in the other, Ed studied patient charts and reports for hours, furiously jotting notes down on his list.

Despite his efforts, Ed continued to stumble. He soon developed a reputation for being testy, not only with other doctors and nurses but with patients. He argued, lost his temper and was too rough during procedures. One afternoon I heard Ed’s voice bellowing from a patient’s room: “But I never said that to you! Why did you have to tell the senior doctor that? You got me into trouble!”

Ed finally gave up on becoming a surgeon. In trying to understand what had happened to our once aspiring colleague, the other young doctors and I talked about how stress is inevitable and surmised that those who collapsed under the pressure were probably better suited to other lines of work. We speculated that Ed lacked a certain sense of humility.

But all of our ruminations finally boiled down to this: each of us was only one misstep away from that lonely and vicious cycle of errors that could unexpectedly and irrevocably spiral out of control.

In the years since, I have worked with other doctors who have had similar experiences. And while the discussions at disciplinary meetings and at morbidity and mortality conferences tend to focus (and rightly so) on the effects of these physicians’ errors on patients, there is rarely any time devoted to how such errors affect doctors and their subsequent interactions with patients.

I called Dr. Colin P. West recently, a practicing general internist and the associate director of the internal medicine residency training program at the Mayo Clinic in Rochester, Minn. About three years ago, Dr. West and his colleagues published an article in The Journal of the American Medical Association on the effect of errors on physicians-in-training and on the outcomes of their future patients. The researchers found that self-perceived errors not only increased the risk of burnout and depression but also adversely affected subsequent patient care. Over time, young doctors who believed they had made errors in the past felt less and less empathy toward their patients, which then led to an even greater risk of subsequent errors.

“What we are learning is that there’s clearly a cost for doctors and patients,” Dr. West said. “There’s probably a certain amount of stress that’s constructive, but when you deal with it for too long and take it too far, that’s when work suffers.”

While doctors should strive for as few errors as possible, “you can’t go through training without making an error unless you are not taking care of patients,” Dr. West said. “And if you are really invested in the care of patients, there’s a personal cost when things don’t go well.”

That cost can extend to patients. Doctors who are depressed are as much as two times more likely to make subsequent errors than doctors who are not. “From the point of view of the patient,” Dr. West observed, “it’s important whether the doctor treating you is experiencing symptoms of depression or burnout.”

And while Dr. West’s research focuses on doctors-in-training, he added, “I don’t think that as a practicing physician you ever stop thinking about how you could have done better, even sometimes with those events you probably couldn’t have prevented.”

Greater support for doctors from both the training process and patients could help to improve patient outcomes and strengthen the patient-doctor relationship. “In 21st century medicine, there’s no reason for a patient to accept suboptimal care,” Dr. West said. “At the same time, patients need to balance their expectations against the reality of the physician experience. And the medical establishment needs to do a better job of helping patients understand what physician lives are really like.”

“This doesn’t mean that physicians need to be coddled,” Dr. West continued, “but they need to be supported from within and by patients. They need to be supported in developing those relationships that help them to flourish. The reward is a stronger physician-patient bond. And that leads to more effective health care for everybody.”

Join the discussion on the Well blog: "For Doctors, the Personal Toll of Mistakes"

Brilliant

This is an op ed from the New York Times and is critical for health care reform
July 6, 2009
Op-Ed Contributor
Health Care’s Infectious Losses
By PAUL O’NEILL

Pittsburgh

HEALTH care reform seems to be on the way, whether we want it or not. So I have been asking questions about the various proposals. Here is a sampling.

•

Which of the reform proposals will eliminate the millions of infections acquired at hospitals every year?

•

Which of the proposals will eliminate the annual toll of 300 million medication errors?

•

Which of the proposals will eliminate pneumonia caused by ventilators?

•

Which of the proposals will eliminate falls that injure hospital patients?

•

Which of the proposals will capture even a fraction of the roughly $1 trillion of annual “waste” that is associated with the kinds of process failures that these questions imply?

So far, the answer to each question is “none.”

Let’s consider that $1 trillion of waste. If we could capture all of it, the savings over 10 years would be five times what President Obama has said he will extract from insurance companies over the same period. The president’s vision of bringing down health care inflation by 1.5 percent a year over the next decade would not be a victory, but a capitulation to the enormous waste in the delivery of medical care.

The president says he likes audacious goals. Here is one: ask medical providers to eliminate all hospital-acquired infections within two years. This is hardly pie in the sky: doctors and administrators already know how to do it. It requires scrupulous adherence to simple but profoundly important practices like hand-washing, proper preparation of surgical sites and assiduous care and maintenance of central lines and urinary catheters. With these small steps, we would no longer have the suffering and death associated with infections acquired in hospitals and we would save tens of billions of dollars every year — money we should have in hand before new health-care entitlements are enacted.

What policymakers tend to forget is that only the people who do the work can make this happen. Legislation can’t do it, regulation can’t do it, infection-control committees can’t do it, financial incentives and disincentives can’t do it. But excellence is possible, and it has been demonstrated.

Where it works, the common denominators are strong leadership and a committed work force. Among those doctors showing the way are Brent James at Intermountain Health in Utah, Gary Kaplan at Virginia Mason Clinic in Seattle and Richard Shannon at the University of Pennsylvania, who have helped bring infection rates down drastically at their own hospitals and at others.

Hospitals and medical schools have great impetus to increase the ranks of such doctors: these improvements in patient care don’t cost money, they save money. And they represent only the tip of the iceberg in opportunities for improving outcomes and reducing costs at the same time.

A next step would be for the government to finance a prompt, detailed and hard-headed study of every example of error, infection and other waste in five major medical centers. Such data would give policymakers and caregivers a clearer picture of the possibilities for cost-saving improvements.

It would also help if reporters and pundits became more informed about the opportunities for improvement, so they could help educate the public and improve the level of the reform debates. As for members of Congress, perhaps it would help them to understand the problem if we assembled the data, by House district, on hospital-acquired infections, medication errors and other waste indicators. They are more likely to push for the right sort of change when they realize that people they know and represent are being hurt or killed by practices we know how to stop.

In the end, any health care reform that does not address the pervasive waste and the associated burden of needless suffering for patients and staff alike will give us little to celebrate.

Paul O’Neill was the secretary of the Treasury from 2001 to 2002

Is Reduction in Physician Fees Rationing of Care?

President Obama is prepared to cut spending for Medicare and Medicaid. Doctors and hospitals will be paid less for services provided under Medicare.
Is that an example of rationing in action?

A radiologist, may argue:

"The proposed fee schedule for 2010 for radiologists and cardiologists is 21% less than this year! Instead of being reimbursed 36.00 per RVU, CMS proposes to reimburse at 28.00 per RVU. These reductions are the first signs of removing economic incentives for medical practice.
Please give us your thoughts about capping the number of work units and how this will put RATIONING on steroids?
There will be few radiologists and cardiologists working after they hit the magical cap number."

Let us be clear about who is rationing what here.

When Medicare reduces its payments to doctors, it rations money to them. It does not directly ration the health care the doctors might render patients.

If physicians refuse to treat patients at the lower fees, it is they who ration health care, even if the incentive to do so came from Medicare.

While I doubt that the payments to radiologists and cardiologists actually will be cut by 21 percent soon — more on that next time — let us suppose it were so. Would there then be “few radiologists and cardiologists working” after such a fee cut?

Presumably, the afflicted physicians would withhold their services only from Medicare and Medicaid patients, assuming that private insurers pay more. But could most radiologists and cardiologists actually earn an adequate livelihood only from privately insured patients? I have my doubts.

Like everyone else, radiologists and cardiologists certainly can claim to be sorely underpaid relative to the extraordinarily high compensation of bankers and corporate executives, which appears to have little correlation with contributions to society. But relative to their colleagues in internal medicine, pediatrics and family practice, radiologists and cardiologists actually are very well paid.

There are a number of sources on physician income (see, for example, this). All of them suggest that the median annual net income of radiologists and of cardiologists (around $400,000) is more than twice that of family practitioners, internists and pediatricians (less than $200,000). The median is a statistic such that half of physicians earn as much as the median or more, and the other half as much or less.

So even if Medicare cut fees of radiologists and cardiologists by 21 percent, the income of these specialists would still exceed that of their colleagues in primary care by 60 percent or more.

Would that be a reason to quit medical practice? After all, doctors are not bankers. They do not work merely for pecuniary gain, but derive non monetary, psychic rewards from their jobs.

Cold hearted as it may seem, economists judge a profession’s income as adequate if it attracts enough young people into the profession. For the last half-century that has been so in American medicine. The constraint on the number of American-trained physicians has never been an inadequate supply of eager and qualified American applicants to American medical schools. Instead, it has been a deliberate constraint on the number of American medical-school slots.

For reasons that elude me, United States policy makers and the medical establishment have for decades preferred to deny thousands of eager and qualified American youngsters the opportunity to study medicine and have then met the resulting shortage of physicians by importing foreign-trained physicians from other countries.

But while there is no overall shortage of qualified young Americans eager to study medicine, there is now a nationwide lament over a shortage of American medical-school graduates willing to enter the primary-care specialties. For that reason Medicare may soon substantially increase the fees for primary-care physicians, assuming private insurers will swiftly follow suit, as usual.

The only question then is whether such fee increases will come at the expense of taxpayers or from other parts of the health care sector, perhaps even the more highly paid medical specialties, including radiology and cardiology. That is a political call.
United States taxpayers have been too stingy vis à vis the medical profession.

I shall also describe a highly ritualistic and entertaining form of Kabuki theater staged annually in Washington in conjunction with the year’s Medicare fee update.

Act I in the play is always the announcement of a 20-percent cut in the fees Medicare pays physicians.

That “cut” actually ends up as a increase of 1 to 2 percent and an annual increase in Medicare spending per Medicare beneficiary on physician services of 5 to 6 percent.

It will be so again this year.

Canadian healthcare

Canada is often praised or panned (based on ones political leanings) for its healthcare system. here is a model of how it works
Canadians can be of two minds about their public health care system.

Tommy Douglas, a former premier of Saskatchewan, was voted “The Greatest Canadian” by the Canadian Broadcasting Corporation viewers for setting up what became the model for the country’s health system. And a survey last year partly sponsored by the federal government found that Canadians ranked “universal health care” among the 10 defining factors of their country (along with Niagara Falls, beavers, hockey and a robotic space arm).

At the same time, Canadians can be quick to complain about that very system. Their chief complaints include wait times, access to doctors, unusual treatments and specialized imaging equipment as well as its overall cost.

Given that, it’s not surprising that Canada’s experience is being used to support the arguments of people on both sides of the American debate about health care.

But before judging Canada’s system, and its suitability as a model for the United States, let’s look at how the system’s financing developed.

The biggest problem in assessing Canada is that there are, in fact, 15 different systems rather than a single, national program like Britain’s. Each of the 10 provincial and 3 territorial governments administers and delivers health care to most residents. On top of that, the federal government is responsible for native people who live on reserves, as reservations are known in Canada, as well as members of the military and their families.

While broad pieces of federal legislation provide overall guidance for each provincial system, they have nevertheless developed largely on a piecemeal basis since the 1960s. Adding to the complexity is the tendency of provincial governments to bicker amongst themselves while vigorously opposing any federal efforts to usurp their constitutional powers over health care.

So when thinking about health care in Canada, bear in mind that for every general rule there can be a multitude of exceptions.

C. David Naylor, a physician and health policy analyst who is president of the University of Toronto, succinctly summed up the system in the title of a book in 1986: “Private Practice, Public Payment.”

Mr. Douglas’s socialist government in Saskatchewan introduced Canada’s first province-wide, government-financed health care system in 1962, immediately provoking a strike by doctors. But it was a Royal Commission established at roughly the same time that ultimately provided the framework for the rest of the country.

Canada’s health care insurance industry, which was growing quickly in the early 1960s, joined with the country’s medical association to campaign against publicly funded medical care for all but the poorest Canadians.

The Royal Commission ultimately rebuffed them. Dr. Naylor’s analysis is that mixing public coverage with private insurance would be a bureaucratic mess that could cause public monies to subsidize for-profit medicine and insurance.

But the doctors did get some of their demands. Canadian physicians are not government employees. They retain a great deal of control over when, how and where they work. Instead of being paid salaries, most of them bill provincial governments on a fee-for-service basis. Canadian hospitals are also autonomous institutions that are generally, but not necessarily, governed by local health authorities.

The details of how that operates become complicated very quickly. But for patients, it’s all invisible.

They never see a bill for hospital treatments or services provided by their doctor. Some hospitals and physicians once imposed surcharges and service fees on patients, but the federal government shut down the practice in 1984 by cutting off health financing to provinces that allowed it. Similarly doctors cannot moonlight and provide basic medical services to patients who are willing to pay for faster or more attentive service.

That doesn’t mean, however, that Canadians do not have health care costs that they have to pay out of pocket or through private insurance. Most dental work, prescription drugs for people not at retirement age, and eyeglasses are among the many costs not covered. The Canadian Institute for Health Information estimates that governments covered about 70 percent of the 171.9 billion Canadian dollars (roughly $148 billion) spent on health care last year.

The challenge for governments to come up with that money, and how effectively the system uses it

Only For Grannies????

July 2, 2009
New York Times
The Patients Doctors Don’t Know
By ROSANNE M. LEIPZIG

AS they do every July, hospitals across America are welcoming new interns, fresh from medical school graduation. Given how much these trainees have yet to learn, common wisdom holds that it’s not a good time of year to get sick. This may be particularly true for older patients, because American medical schools require no training in geriatric medicine.

Often even experienced doctors are unaware that 80-year-olds are not the same as 50-year-olds. Pneumonia in a 50-year-old causes fever, cough and difficulty breathing; an 80-year-old with the same illness may have none of these symptoms, but just seem “not herself” — confused and unsteady, unable to get out of bed.

She may end up in a hospital, where a doctor prescribes a dose of antibiotic that would be right for a woman in her 50s, but is twice as much as an 80-year-old patient should get, and so she develops kidney failure, and grows weaker and more confused. In her confusion, she pulls the tube from her arm and the catheter from her bladder.

Instead of re-evaluating whether the tubes are needed, her doctor then asks the nurses to tie her arms to the bed so she won’t hurt herself. This only increases her agitation and keeps her bed-bound, causing her to lose muscle and bone mass. Eventually, she recovers from the pneumonia and her mind is clearer, so she’s considered ready for discharge — but she is no longer the woman she was before her illness. She’s more frail, and needs help with walking, bathing and daily chores.

This shouldn’t happen. All medical students are required to have clinical experiences in pediatrics and obstetrics, even though after they graduate most will never treat a child or deliver a baby. Yet there is no requirement for any clinical training in geriatrics, even though patients 65 and older account for 32 percent of the average doctor’s workload in surgical care and 43 percent in medical specialty care, and they make up 48 percent of all inpatient hospital days. Medicare, the national health insurance for people 65 and older, contributes more than $8 billion a year to support residency training, yet it does not require that part of that training focus on the unique health care needs of older adults.

Medicare beneficiaries receive care from doctors who may not have been taught that heart attacks in octogenarians usually present without chest pain, or that confusion can be due to bladder infections, heart attacks or Benadryl. They do not routinely check for memory problems, or know which community resources can help these patients manage their conditions. They’re uncomfortable discussing goals of care, and recommend screening tests and treatments to patients who are not going to live long enough to reap the benefits.

I was part of a group of doctors and medical educators who recently published in the journal Academic Medicine a set of minimum abilities that every medical student should demonstrate before graduating and caring for elderly patients. Nicknamed the “don’t kill Granny” list, it includes being able to prescribe medicines, assess patients’ ability to care for themselves, recognize atypical presentations of common diseases, prevent falls, recognize the hazards of hospitalization and decide on treatments based on elderly patients’ prognosis and their personal preferences.

The 2008 Institute of Medicine report “Retooling for an Aging America” resolved that all licensed health care professionals should be required to demonstrate such competence in the care of older adults. But this resolution lacks teeth. Medical resident training programs that receive Medicare money should be required to demonstrate that their trainees are competent in geriatric care. Medicare should finance medical training in nursing homes. And state licensing and medical specialty boards should require demonstration of geriatric competence for licensing and certification.

Basic geriatric knowledge is preventive medicine. Nurses, social workers, pharmacists and other health care professionals should have it, too, in order to improve care for older people. But until doctors get this basic training, we can’t even begin to give 80-year-olds the care they need.

Rosanne M. Leipzig, a physician, is a professor at Mount Sinai School of Medicine.

Dr. Obama

This is going to hurt

Jun 25th 2009
From The Economist print edition


Barack Obama was elected in part to fix America’s health-care system. Now is the time for him to keep his word








DIAGNOSING what is wrong with America’s health-care system is the easy part. Even though one dollar in every six generated by the world’s richest economy is spent on health—almost twice the average for rich countries—infant mortality, life expectancy and survival-rates for heart attacks are all worse than the OECD average. Meanwhile, because health insurance is so expensive, nearly 50m Americans, an obscene number in such a rich place, have none; those that are insured pay through the nose for their cover, and often find it bankruptingly inadequate if they get seriously ill or injured.

The costs of health care hurt America in three other ways. First, since half the population (most children, the very poor, the old, public-sector workers) get their health care via the government, the burden on the taxpayer is heavier than it needs to be, and is slowly but surely eating up federal and state budgets. Second, private insurance schemes are a huge problem for employers: the cost of health insurance helped bring down GM, and many smaller firms are giving up covering employees. Third, expensive premiums depress workers’ wages.

Every rich country faces some of these problems (see article), but nobody suffers worse from them than America. This summer’s debate about health care may determine the success of Barack Obama’s presidency. What should he do?



Uncomfortably numb
If he were starting from scratch, there would be a strong case (even to a newspaper as economically liberal as this one) for a system based mostly around publicly funded health care. But America is not starting from scratch, and none of the plans in Congress shows an appetite for such a European solution. America wants to keep a mostly private system—but one that brings in the uninsured and cuts costs. That will be painful, and require more audacity than Mr Obama has shown so far.

The uninsured are the relatively straightforward bit. All you need do is “mandate” everyone to take out health insurance, much as drivers are legally required to have car insurance. Poorer Americans would get subsidies, and (as with car insurance) insurance-providers would be forced to offer affordable plans and not exclude the sick or the old. This has already happened in Massachusetts as well as in a raft of countries, including the Netherlands, Israel and Singapore. All the main proposals now working their way through Congress include some version of a mandate. Mr Obama opposed a mandate on the campaign trail, but since he has not come up with any plausible alternative, he should quietly swallow one.

The snag is that all these subsidies are expensive. Those congressional plans might cost $1.2 trillion to $1.6 trillion over ten years: the White House is feverishly trying to massage the estimates downward, as well as working out how to plug the hole through various savings and tax increases. But the sticker-shock for the mandate is really just a reflection of the second big problem: the overall cost structure of American health care. Indeed, one of the worst things about Mr Obama’s oddly hands-off approach to health reform (see article) is that he is concentrating on a symptom, not the underlying disease.

A bolder president would start by attacking two huge distortions that make American health care more expensive than it needs to be. The first is that employer-provided health-care packages are tax-deductible. This is unfair to those without such insurance, who still have to subsidise it via their taxes. It also encourages gold-plated insurance schemes, since their full cost is not transparent. This tax break costs the government at least $250 billion a year. Mr Obama still shies away from axing it, as do the main congressional plans on offer; but it ought to go (albeit perhaps in stages).



Perversity on stilts, or crutches
The second big distortion is that most doctors in America work on a fee-for-service basis; the more pills they prescribe, or tests they order, or procedures they perform, the more money they get—even though there is abundant clinical evidence that more spending does not reliably lead to better outcomes. Private providers everywhere are vulnerable to this perverse incentive, but in America, where most health care is delivered by the private sector rather than by salaried public-sector staff, the problem is worse than anywhere else.

The trouble is that many Americans are understandably happy with all-you-can-eat health care, which allows them to see any doctor they like and get any test that they are talked into thinking they need. Forcing people into “managed” health schemes, where some species of bureaucrat decides which treatments are cost-effective, is politically toxic; it was the central tenet of Hillary Clinton’s disastrous failed reform in 1994.

But to some extent it will have to be done. There is solid evidence to suggest that by cutting back on unnecessarily expensive procedures and prescriptions, anything from 10% to 30% of health costs could be saved: a gigantic sum. The Mayo Clinic in Minnesota and the California-based Kaiser Permanente system have shown that it is possible to save money and produce better outcomes at the same time. So reform must aim to encourage more use of managed health care, provided by doctors who are salaried, or paid by results rather than for every catheter they insert. Medicare, the government-run insurance scheme for those over 65, could show the way, by making much more use of results-based schemes and encouraging more competition among its various providers and insurers.

But in the end it will be up to the private health-care system. One thing that should be unleashed immediately is antitrust: on a local level many hospitals and doctors work as price-fixing cabals. Another option, favoured by many Democrats and the president, is for the government to step in with a results-based plan of its own, to compete against the private industry. That could harm innovation and distort the market further. Mr Obama should use it as a threat, rather than implement it now. If the private sector does not meet certain cost-cutting targets in, say, five years, a public-sector plan should automatically kick in. Such a prospect would encourage hospitals and doctors to accept a painful but necessary reform now.

The Malpractice mess

How Other Countries Judge Malpractice
The health-care systems Democrats want to emulate don't allow contingency fees or large jury awards.



By RICHARD A. EPSTEIN

In his recent speech to the American Medical Association, President Barack Obama held out the tantalizing possibility of reforming medical malpractice law as part of a comprehensive overhaul of the U.S. health-care system. As usual, he hedged his bets by declining to endorse the only medical malpractice reform with real bite -- a national cap on damages for pain and suffering, such as the ones enacted in more than 30 states.

These caps are usually set between $250,000 to $500,000, and they can make a substantial difference. Other reforms, such as rules that limit contingency fees, shorten statutes of limitation, or confine each defendant's tort exposure to his proportionate share of the harm, have small and uncertain effects.

Medical malpractice, of course, is not just an American issue. And now that the U.S. is considering universal health-care systems similar to those found elsewhere, it's worth a quick peek at their medical malpractice systems -- which usually attract far less controversy, and are far less expensive, than our own.
[Commentary] Chad Crowe

Litigation in the U.S. has at least four distinctive procedural features that drive up malpractice costs. The first is jury trials, which can veer out of control and in any case introduce significant uncertainty. The second is the contingency-fee system, which allows well-heeled lawyers to self-finance litigation. The third is the rule that makes each side bear its own costs. This induces riskier lawsuits than are undertaken in most other countries, such as Canada, England and most of Europe, where the loser pays the legal costs of the winner. The fourth is extensive pretrial discovery outside the direct supervision of judges, which occurs far more readily here than elsewhere.

Even these features aren't the whole story. American judges frequently let juries decide whether honest mistakes are negligent. Judges in other nations are less likely to do so. American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury. European judges usually will not.

American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury. Lastly, damage awards for lost income and medical expenses in the U.S. tend to dwarf awards made elsewhere -- in part because governments elsewhere provide this medical care from their nationalized systems. In sum, the medical malpractice system provides incentives for plaintiffs that really do matter. Americans, for example, file claims about 3.5 times more often than Canadians.

The overall picture is still more complex, since there are major variations in medical malpractice rules in different American states, and differences within states, such as between juries in big cities and those in small towns. Doctrinal reform cannot stop these abuses. What is needed is the replacement of juries with specialized commissions like those in France, which help reduce litigation expenses and promote uniformity in case outcomes across regions.

What then does this quick survey teach us about the ability of our system to deter medical injuries and compensate its victims? Not much that's encouraging.

A study led by David Studdert published in the 2006 New England Journal of Medicine concluded that the administrative expenses of the malpractice system were "exorbitant." And worse, it found errors in jury verdicts in about a quarter of the litigated cases. Juries denied compensation properly due in 16% of the cases, and awarded it about 10% of the time when it was unwarranted. These error rates don't include damage awards set at improper levels.

More disturbingly, a careful 1992 study by Donald Dewees and Michael Trebilcock in the Osgood Hall Law Journal concluded that the frequency of medical malpractice in Canada was about the same as in the U.S. -- for about 10% the total cost. In other words, our costly system doesn't seem to do much to deter malpractice. On medical malpractice at least, Canada does better than we do.

The U.S. cannot ignore serious reform. To be sure, medical malpractice premiums constitute well under 1% of the total U.S. health-care bill. But defensive medicine adds perhaps as much as 10%. High malpractice costs can shut down clinics that serve vulnerable populations, leading to more patient harm than the occasional case of malpractice.

The best reform would be to allow physicians, hospitals and patients to contract out of the liability mess by letting the parties reject state-imposed malpractice rules. They could, for example, choose to arbitrate, to waive jury trials, or to limit damage recovery. Stiff competition and the need to maintain reputation should keep medical providers in line in such a system. Market-based solutions that make the private sector more responsive should in turn undermine the case for moving head-first into a government-run health-care system with vast, unintended inefficiencies of its own.

Mr. Epstein is a professor of law at the University of Chicago, a senior fellow at the Hoover Institution, and a visiting professor at NYU Law School.