In its position paper, the American College of Physicians [1] identifies liability reforms emanating from the California Medical Injury Compensation Reform Act (MICRA), including caps on damages, limits on attorney contingency fees, and offsets of awards from collateral sources. These reform mechanisms, however, remain highly contentious and may adversely affect the public health.

One major academic study found that 98% of all adverse events caused by negligence did not result in malpractice claims [2]. Indeed, the failure of most negligence cases to enter the system is probably the biggest problem plaguing the malpractice system. Contingency-fee caps will probably make it even harder for prospective plaintiffs with meritorious cases to obtain experienced representation. If a limit is imposed on plaintiff's attorney fees, shouldn't limits also be imposed on the ability of defendant providers to secure experienced representation, perhaps by limiting fees that defendants' attorneys may accept [3]?

Thought must be devoted to the prospect that damage caps may substantially impair the ability of injured patients to receive fair compensation.

Malpractice reform targeted at offsetting awards from collateral sources may improperly remove the burden of financial responsibility from the wrongdoer and thus may amount to an undeserved "windfall" for the wrongdoer [3].

Suggestions that restructuring the extant malpractice system may put a sizable dent in the overall cost of the health system are spurious. The country now spends about $1 trillion annually on health care; the American Medical Association has estimated that about $5.6 billion is spent annually on insurance premiums [4]. The American Medical Association has also estimated that about $15 billion is expended annually on defensive tactics [4]. However, no real agreement exists concerning what tactics constitute "defensive" medicine.

Ultimately, the substantial amount of injury to patients associated with medical management must be reduced [5]. This is the real key to ameliorating the malpractice crisis.