PROCESSING THE TORT DETERRENT SIGNAL - A QUALITATIVE STUDY

Medical mistakes often are responsible for patient injury and sufferin g, but not all such mistakes are negligent. In the United States, inju red patients have recourse to legal action under the common law. The m edical malpractice tort trial system is intended to provide compensati on for patients who have been negligently injured and to deter future negligent acts by physicians. The deterrent function of torts largely rests on practitioners' capacity and willingness to internalize, or 'p rocess', the lessons of tort trials. However, physicians' willingness or ability to process the tort deterrent signal, while widely assumed in much contemporary legal writing on medical malpractice, has never b een empirically verified. This study is a qualitative assessment of ho w practicing physicians process the tort deterrent signal. We intervie wed a random sample of 47 internists, surgeons, and obstetrician/gynec ologists from New York State as part of the Harvard Medical Practice S tudy. The interviews reveal three notable findings: physicians in our sample largely define medical negligence by reference to moral qualiti es of the practitioner; they claim that lawyers and the legal process of tort trials lack the moral authority to guide medical practice; and finally, while they consequently reject the lessons of lawyer-dominat ed, confrontational tort trials, they indicate that they would respond more favorably to hospital-based, physician-led, educational quality- control measures. Based on these findings, we identify several potenti al impediments to the receipt and processing of the tort deterrent sig nal by individual physicians and we suggest that the interview results support the notion of institutional liability for medical malpractice . Copyright (C) 1996 Elsevier Science Ltd