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The Center for American Progress has a series of short articles on medical malpractice, and it is worth giving a read. As the election shifts into overdrive, you can expect to hear a lot about this issue, since health care is sure to be central this cycle and the canard about a medical malpractice crisis is one that gets trotted out every year.

Proponents of damage caps on personal injury like to use the myth of a medical malpractice crisis as a hammer, talking about how frivolous lawsuits and “jackpot juries” are bloating healthcare costs nationwide. However, they tend to ignore a few crucial facts: first, that medical malpractice costs hover around 2% of all healthcare costs, and second, that the systems is quite skilled at sorting out truly frivolous claims.

But even that is missing the point.

The civil justice system generally, and medical malpractice specifically, is not about shifting money from one party to another; and one of the main things it is about is ensuring continuing care for those with medical needs. There is, all to frequently, no safety net for those who are injured. And if you were injured because of another, then nothing is more basic, more primal, more just then to ensure that the person who injured you does their level best to make you whole again. It is not for nothing that a former doctor and new lawyer framed the issue this way:

“When errors do occur, early and honest disclosure and offer of fair compensation should be the norm.”

It is not about the money, it is about responsibility. Keeping that in mind is the secret to parsing talk about the medical malpractice “crisis.” If the statement is not about how to care for injured people, if it instead talks about exploding costs, then you can bet it is a smoke screen. The first goal of everyone should be expanding protection to the injured, not to the bottom line.

Nathan T. Swanson

Summer Intern 2008

JD Candidate, 2009

University of Denver

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