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David A. Hyman, MD, JD; Charles Silver, JD
Author and Funding Information

From the Epstein Program in Health Law and Policy and the University of Illinois College of Law (Dr Hyman); and Center on Lawyers, Civil Justice, and the Media (Prof Silver), University of Texas at Austin School of Law.

Correspondence to: David A. Hyman, MD, JD, University of Illinois College of Law, 504 E Pennsylvania Ave, Champaign, IL 61820; e-mail: dhyman@illinois.edu


Financial/nonfinancial disclosures: The authors have reported to CHEST that no potential conflicts of interest exist with any companies/organizations whose products or services may be discussed in this article.

Reproduction of this article is prohibited without written permission from the American College of Chest Physicians. See online for more details.


Chest. 2013;143(6):1835-1836. doi:10.1378/chest.13-0473
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To the Editor:

We are grateful for Dr Vest’s comments on our article in CHEST.1 He raises three issues. First, Dr Vest suggests that doctors may not ethically charge more when testifying as experts than they do when treating patients. We find this suggestion puzzling. The market price for expert services reflects the supply of qualified individuals willing to perform them. Prices are high because tort reform has restricted the supply of those who can be experts and because physicians actively discourage one another from providing such services.2,3 Dr Vest’s strategy of using ethics rules as price controls would restrict the supply even further. If we want to reduce the cost of medical experts, the ethical (and efficient) thing to do is to get rid of the constraints, rather than make them worse in the name of ethics.

Dr Vest also suggests that money spent compensating victims through the tort system might more wisely be used in other ways, such as to improve public health or patient safety. Analysts disagree on whether the costs of the current system exceed the benefits, but there is no credible reason to think that health-care providers would use the money currently consumed by malpractice premiums to improve their delivery systems if given the chance to do so. Why would they care more about patient safety if the (admittedly fairly limited) threat of being held legally accountable for errors were removed?

Finally, Dr Vest thinks the malpractice system is expensive partly because it is fault based. It is important to distinguish the high transaction costs our fault-based system generates from the total cost of compensating patients who are injured by medical treatment. Proposals to switch to a no-fault system routinely fail because any such system would, by definition, have to compensate many more injured patients, and, therefore, would be vastly more expensive.4 The fault-based system keeps total costs well below what they would be otherwise, because its high transaction costs discourage claiming.

References

Hyman DA, Silver C. Five myths of medical malpractice. Chest. 2013;143(1):222-227. [CrossRef] [PubMed]
 
Bal BS. The expert witness in medical malpractice litigation. Clin Orthop Relat Res. 2009;467(2):383-391. [CrossRef] [PubMed]
 
Parker L. Medical-malpractice battle gets personal. USA Today. June 13, 2004.http://usatoday30.usatoday.com/news/nation/2004-06-13-med-malpractice_x.htm. Accessed April 15, 2013.
 
Hyman DA. Medical malpractice: what do we know and what (if anything) should we do about it? Texas Law Review. 2002;80(7):1639-1655.
 

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References

Hyman DA, Silver C. Five myths of medical malpractice. Chest. 2013;143(1):222-227. [CrossRef] [PubMed]
 
Bal BS. The expert witness in medical malpractice litigation. Clin Orthop Relat Res. 2009;467(2):383-391. [CrossRef] [PubMed]
 
Parker L. Medical-malpractice battle gets personal. USA Today. June 13, 2004.http://usatoday30.usatoday.com/news/nation/2004-06-13-med-malpractice_x.htm. Accessed April 15, 2013.
 
Hyman DA. Medical malpractice: what do we know and what (if anything) should we do about it? Texas Law Review. 2002;80(7):1639-1655.
 
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    Print ISSN: 0012-3692
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