College of American Pathologists

  President's Desk Column




Rolling up our sleeves for tort reform

December 2004
Mary E. Kass, MD

We can get through this thing all right. We've got to stick together, though. We've got to have faith in each other.

—Jimmy Stewart as George Bailey
"It's a Wonderful Life"

Frank Capra's 1946 classic is one of my favorite holiday movies, and the "run on the bank" is one of its finest moments. Those familiar with this vignette know that the chicanery of the evil financier, Mr. Potter, has put the ever-tenuous solvency of the Bailey Building and Loan at risk. If Potter can persuade enough anxious depositors to close their accounts, the credit union will collapse, giving him sole control of residential properties in Bedford Falls. George Bailey rises to the challenge, persuading his neighbors that supporting one another is in their enlightened self-interest.

A modern remake might tell the story of a good physician's son, the last pathologist still reading Pap smears within 100 miles of the hardscrabble Kentucky town where he grew up. Dr. Bailey has been in practice for 10 years and is still paying off student loans. It's snowing; maybe it's New Year's Eve. He has just received the premium notice for his professional liability insurance, showing a huge increase. In a split frame, we meet Mr. Potter, a carpetbagging trial lawyer specializing in high-profile medical malpractice cases. Potter has persuaded the family of a young woman who died of metastatic cervical cancer two years ago to sue the hospital and all her caregivers. His traveling medical expert has testified in deposition that he sees signs of early trouble in Pap smears dating two years before diagnosis. Dr. Bailey doesn't see it and neither do the top-drawer pathologists that the hospital consults, yet the case drags on. Dr. Bailey is thinking about moving to a state where medical liability reforms will allow him to do the work he loves and still pay the rent. Will the people of Bedford Falls lose their only pathologist? Stay tuned.

I put Dr. Bailey in Kentucky because it is one of 20 states on the "in crisis" list compiled for the American Medical Association's June 2004 report, "Medical Liability Reform—Now!" (The report, which does a fine job of fact-checking and myth-busting, is online at According to that report, Dr. Bailey's home state has lost 36 percent of its practicing neurosurgeons, 29 percent of its general surgeons, and 25 percent of its obstetricians because of high medical liability insurance rates and declining coverage availability.

But I could have put Dr. Bailey in Arkansas, Connecticut, Florida, Georgia, Illinois, Massachusetts, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Texas, Washington, Nevada, West Virginia, or Wyoming. Or in one of the 24 states where familiar rumblings signal similar troubles brewing.

Whether in medicine or manufacturing, social attitudes that drive excess litigation and outsized liability awards diminish quality of life for everyone. Municipalities remove diving boards and playground equipment for fear of an accident. Boy Scouts' parents have to sign a two-page waiver before their sons can take a horseback ride. Drugmakers pull products off the shelves at the first hint of controversy. Public parks close hiking trails with steeper inclines. The list goes on. Whatever happened to Bedford Falls?

Accidents happen and good people who are not negligent make mistakes. Yet the relationship between medical error and litigation is tenuous at best. A 1991 Harvard Medical Practice Study found that only 1.53 percent of those injured by medical negligence ever file a claim. And a 1993 Harvard Medical Practice Study of New York State hospital and medical professional liability claims data found that negligence had occurred in only 15 percent of claims filed.

We know that medical error is generally systems error, best addressed through well-framed patient safety initiatives. In case-based quality-improvement programs, health care personnel must feel free to speak up without fear that their comments will become the basis for a plaintiff attorney's interrogatories. The good news there is that both houses of Congress did pass versions of patient safety legislation this year, though not in time to work out their differences and pass a compromise bill. We can reasonably hope for patient safety legislation from this Congress.

We have fresh faces in Congress for 2005, many of whom are expected to support medical liability reforms. There is hope for real change, but we must first tend to the one-on-one, grassroots task of getting the message across. Tort reform would return our priorities to available, affordable, excellent, and ever-improving health care, and that is in everyone's best interest. We know this. Our patients and our legislators know it, too. But some need reminding and others need facts to counter the myths out there.

The College will alert you when specific grassroots efforts are needed on a bill in the House or Senate, but in the meantime, please do talk to your colleagues, your patients, and your families about tort reform. Make the effort to get to know your legislators now, before they return to Washington. Introduce yourself and let them know you're available for technical advice on anything medical. We have a good chance this time, so please make that call. It's in our enlightened self-interest.

Dr. Kass welcomes communication from CAP members. Send your letters to her at