S  uing a Cincinnati hospital for the death of their 39-year-old son, Jim, brought cold comfort
       to Ray and Arlene Wojcieszak. “My parents cried every day for months, as they were forced to relive Jim’s death over and over during the deposition and discovery process,” says Doug Wojcieszak, Jim’s brother. But their anger over the shocking mistakes made by Jim’s doctors was just as powerful as their grief. They couldn’t forget how the cardiovascular surgeon, “mad as a wet hen,” in Ray’s words, after Jim died during emergency open-heart surgery, told the family he would have performed bypass surgery on the son’s three blocked arteries had Jim’s doctors recognized that a series of heart attacks rather than a bacterial infection was ravaging their patient’s heart. The reason Jim’s condition was misdiagnosed, the family believes, is that the hospital mixed up Jim’s medical chart with that of Ray, his father, whose cardiac stress test, a few months earlier, had revealed a heart as healthy as a 35-year-old’s.

When the family demanded answers from the hospital on why Jim’s heart attacks had been overlooked, “the wall of silence descended,” says Doug Wojcieszak. “Even the surgeon who had been honest the day my brother died told my parents he was no longer allowed to speak to them about the event.”

Jim Wojcieszak died in 1998. The suit was settled in 2000 before trial for an undisclosed amount. Five years later, Doug Wojcieszak started an advocacy group, Sorry Works!, to convince hospitals to abandon their “deny and defend” approach to negligence. What injured patients want, says Wojcieszak, is full disclosure of a mistake, followed by a sincere apology, a promise to fix systems that may have contributed to the error and a timely offer of compensation. “Had the hospital done those four things, what would we have sued over? Nothing,” says Wojcieszak. “If you treat us with respect, we don’t want to own your hospital, your speedboat or your kids’ college fund. We just want what’s fair so we can move on with our lives.”

Yet few people in medicine would feel safe admitting that they were at fault for a poor outcome, and physicians and hospitals have their own list of grievances about the current system of adjudicating claims of medical malpractice. The prevailing view in medicine is that juries lack the technical knowledge required to decide whether the standard of care has been violated. Moreover, although 71% of claims are dropped or dismissed, physicians often must endure the agony of defending themselves against meritless claims while paying a median amount of $15,000 a year for malpractice insurance coverage.

In short, the current system isn’t working well for anyone. Doctors, often reluctant to accept high-risk cases, practice defensively, all too aware that even the appearance of a slipup could land them in court. Though there is no official tally, droves of physicians have left practice, particularly in states with high insurance premiums.

Patients who have been harmed, meanwhile, wait an average of five years to be compensated and typically hand over half of their damage awards to attorneys. And according to a 2006 study by the Harvard School of Public Health and Brigham and Women’s Hospital, justice is not often served. “Overall,” lead author David Studdert concludes, “the malpractice system appears to be getting it right about three-quarters of the time.”

Many legislative solutions have been proposed to reduce burgeoning malpractice costs and make the tort system less adversarial. Yet only a few reforms have made it into law, and though malpractice premiums have leveled off, almost no one thinks the crisis has passed. In 1999 a report by the Institute of Medicine declared that preventable medical errors kill as many as 98,000 people each year in the United States. Even if one accepts the prevailing estimate that only one of five serious injuries due to negligence results in litigation, reducing mistakes appears to be among the best ways to reduce the number of lawsuits. That idea is a core principle of the fledgling patient-safety movement, which argues that not only do patients have the right to know when care has gone awry but also that hospitals have a responsibility to make sure errors are openly discussed so future incidents can be prevented.