In 1999, the Institute of Medicine (IOM) rocked the medical establishment with a report concluding that tens of thousands of hospital patients die each year as result of preventable medical errors.

Among the many issues raised in the ensuing blitz of press conferences, congressional hearings, journal articles, blue-ribbon panels, and follow-up analyses, one was conspicuously absent: the potential role for medical malpractice liability to improve health care by reducing medical errors. The reason? In the American health care system, malpractice liability is such a toxic topic that it defies any attempt at rational discussion, according to Frank A. Sloan, a national expert on medical malpractice liability and the J. Alexander McMahon Professor of Health Policy and Management and Professor of Economics at Duke University.

“Most people who are pushing for health care quality simply don’t want the albatross of medical malpractice hanging around their neck,” says Sloan. “I think the issues go hand in hand. But the minute you bring up malpractice, you lose a large part of your audience.”

With Lindsey M. Chepke, a lawyer and research associate at Duke’s Center for Health Policy, Sloan has co-authored Medical Malpractice, an insightful analysis of the issues surrounding malpractice in the United States and how they can be addressed. Sloan’s work was supported by a Robert Wood Johnson Foundation Investigator Award in Health Policy Research.

Even the recent national debate on health care reform largely ignored malpractice liability. Although there may be discussions of limiting a patient’s right to sue or talk of capping damage awards, almost nowhere is there even an acknowledgement that, if properly applied, holding doctors and hospitals legally accountable for negligence might help to improve health care, Sloan notes.

He believes that health care professionals and policymakers are missing a major opportunity to substantially reduce the costly premiums and expensive claims settlements that have made malpractice liability reform the third rail of the health care quality discussion. “So far all we have done is try to treat some of the symptoms,” he says. “It’s time to start dealing with the disease.”