Straddling law and medicine, and looking for an answer to the malpractice crisis

When health policy guru Troyen A. Brennan, M.P.H. ’84, J.D. ’84, M.D. ’84, began his studies at the School of Medicine in 1978, fresh from a Rhodes Scholarship at Oxford, he “wandered around,” he says, liberally sampling the range of courses Yale had to offer, particularly in public health and law. Brennan already had a strong interest in policy research, and he found the classes at the Law School to be so stimulating that he donned a second hat during his second year of medical school and became a law student as well.

But while Brennan still believes that his immersion in the world of law has been invaluable in his career as a policy-maker, he never doubted that he would spend his working life as a physician. “I always knew I’d practice medicine, not practice law,” he says. “I’ve never taken a bar exam.”

Lawyering is too solitary for Brennan, who prefers the social and intellectual give-and-take of medicine. “The practice of law is pretty isolating, whereas medicine’s just the opposite—it’s always dealing with people,” says Brennan, now professor of medicine at Harvard Medical School and professor of law and public health at the Harvard School of Public Health. “It’s much more interpersonally satisfying.”

So it’s no surprise that Brennan chose a very public way of doctoring. He has been front-and-center in national debates on health care policy for two decades; his research group now focuses on the interwoven issues of improving patient safety and addressing the crisis in medical malpractice.

“Until very recently, the major way in which our health care system dealt with deterring medical injuries and improving safety was through medical malpractice. That was the social mechanism,” Brennan says. “We think those should be torn apart, and that patient safety should be addressed through an entirely different mechanism.”

Brennan argues that both doctors and patients would be far better off with an administrative compensation scheme or mandatory arbitration of claims of medical injury. He envisions a system similar to Workers’ Compensation, where an administrative-law judge would render verdicts after advice from experts and with the help of specifically defined criteria on how avoidable a given patient’s injuries were under present standards of care. Any damages would be awarded according to strict guidelines.

As it stands, state common law governing medical injury claims is a patchwork of wildly varying standards and precedents. A few states—Nevada, Oregon, Pennsylvania, Texas and Illinois, for example—are malpractice hotspots where skyrocketing insurance premiums are leading to a shortage of specialists. The American Medical Association has said that as many as 20 other states are also in “malpractice crisis.” And Brennan says that 50 to 60 percent of insurance premiums now pay attorneys’ fees rather than compensating patients who have been injured in avoidable medical accidents.

Brennan also endorses a greater embrace of “enterprise liability,” where hospitals, rather than individual doctors, are held liable when accidents occur. “In plane crashes, it’s not like everybody goes and sues the pilot,” he says. “They sue the airline, because it’s a big enterprise. The pilot’s part of it, but he’s got to be informed by the systems and processes that are going to make that flight safe. A doctor in a hospital is part of a much larger system, and that system’s got to function well to prevent these types of injuries in the future.”

Brennan says that the simple substitution of “avoidable” for “negligent” under his scheme would represent a major cultural shift away from the simmering cauldron of the malpractice courtroom. When we cast all medical accidents, even some that may have been unavoidable, in terms of negligence, he says, doctors are loathe to come forward when they have made an error.

“If doctors could say, ‘This was an avoidable injury, and we should go ahead and report this,’ Brennan says, “they don’t have to feel as though they’re involved in some sort of moral Passion Play.”