Taken together, these letters make four points. First, legal performance is unsatisfactory. My editorial agreed, although with different emphasis. Second, the correspondents all find claims much too frequent ("myriad" suits, "alarming" frequency). Claims are certainly high relative to the placid 1950s, when lifetime chance of suit was only 1/7 [1]. For 1991, 1/7 was the national average annual rate (13.9%, down from all-time high of 17.7% in 1985 [data from the St. Paul Fire & Marine Insurance Co. Personal Communication]). The typical doctor's risk of claim is lower, however, because claims are concentrated disproportionately in high-claims areas and specialties, and among repeated defendants. Still, claims remain vastly outnumbered by legitimate negligent injuries. Major studies have found negligent hospital injuries higher by 8:1 or 10:1 (2; see also editorial references). It may seem deplorable that nearly all physicians now can expect to have paid claims sometime in their lives, but almost all motorists do, even though most drive only part-time, whereas most physicians work extra hours.

Third, Drs. Khandekar and Locker profess shock that juries might err in favor of plaintiffs 15% of the time (false-positives in fact were 21% [see Table 3 of article by Taragin and colleagues]). Actually, the far higher rate of errors favoring defendant physicians (false-negative rate of 58%) was not mentioned. Criminal law requires the state to prove guilt beyond any "reasonable doubt," perhaps a 90/10 standard, punishing the innocent seems much worse than leaving the guilty unpunished. In contrast, civil litigation like malpractice only requires a "preponderance of the evidence," roughly, above 50-50. In such cases, the (alleged) underlying harm has already been done, so the only question is who should bear its costs. Wrongly leaving them on the plaintiff seems equally bad as wrongly shifting them to the defense.

Fourth, Dr. Neiblum suggests moving toward the British rules that losing parties pay winners' costs (although he wants only the losing plaintiffs so burdened and only in "frivolous" cases) and that plaintiffs be banned from paying their lawyers through contingency fees (under which only winners pay). Again, note the asymmetry here: added negative incentives for one side of a contingency (losing) but subtraction of a positive incentive for the other (winning). The need for further disincentives to claim may be questioned, given that so few negligently injured patients come forward [2] and that New Jersey doctors are already winning fully 76% of all jury trials, including 79% their insurer thinks they should win and 58% they should lose. Readers should also understand the business aspects of contingency fees. They act like legal-fee insurance for the high costs of litigation. They also make lawyers screen out most would-be cases [3], which should please physicians, although also to seek maximum recovery, which does not. Insurance of litigation expense is taken for granted by defendants, whose premiums are also not only tax deductible but also passed on to patients as higher fees. One can imagine the outcry from physicians at any proposal to make them responsible for all legal fees from their own personal, after-tax resources. In England, only the wealthy and legal-assistance clients have easy access to courts, and many question the system [4]. In the United States, legal-aid lawyers are barred from taking personal injury cases, precisely because contingent fees make private-pay lawyers accessible. A less drastic approach is to regulate the high end of legal fees (California style) and to end the unpredictability and potential "jackpot" recovery possible under vague, open-ended rules of figuring damages, especially for "pain and suffering" [5].

Broader reforms are necessary to produce a system that deals with more cases more expeditiously, at lower transaction cost, with greater predictability and consistency of findings, and with a structured rather than open-ended approach to damages, again, especially for pain and suffering. Patients are caught in the crossfire between those doctors who want to declare open season on all the prerogatives tort plaintiffs have accrued over generations and plaintiffs' lawyers who want to retain a profitable, insurance-funded enterprise for top lawyers, but one that yields a minor and delayed compensation for negligently injured patients. Patients and doctors deserve better.