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A Better Fix for Medical Malpractice

Author: Peter R. Orszag, Adjunct Senior Fellow
February 25, 2014


I have long believed that reforming U.S. medical malpractice laws could bring significant benefits, and new research supports that notion. Before conservatives get too excited, though, the evidence suggests the right way forward is not to impose arbitrary caps on liability. Instead, we should change the basis for finding a doctor guilty of malpractice in the first place.

The core problem with the medical liability system is that doctors are evaluated by the standard of "customary practice," defined as what doctors typically do. Customary practice, however, might not reflect the best medical science.

Capping damages for medical malpractice can do little to solve this problem, but changing the standard against which doctors are evaluated would. In particular, doctors should have a safe harbor from malpractice suits if they follow evidence-based protocols published by a professional medical association. The Center for American Progress and others have proposed exactly this type of approach, and have also provided details about how it could work.

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