Medical Malpractice Reform

By Mike Magee, MD

When President Obama recently addressed the American Medical Association (AMA) and signaled support for malpractice reform, he received a standing ovation. No surprise there. But the truth is this reform is long overdue, and will better serve the people as well as those caring for the people.

Medical malpractice law was designed to accomplish certain specific social objectives: addressing poor quality, compensating patients for injuries resulting from negligence, and making future malpractice occurrences less likely.

In theory, this law makes sense. Courts provide oversight when professional oversight breaks down. Doctors and hospitals are insured and therefore assured that a claim will not lead to financial ruin. Patients show restraint. And lawyers pursue only claims that have merit. But in practice, reality does not come close to this theory.

Three well-known scholars noted in 2004, the medical malpractice system “has internal logic but falls far short of its social goals of promoting safer medicine and compensating wrongfully injured patients.”¹

The biggest problem? The medical malpractice system is fundamentally adversarial and built on a culture of blame. Doctors, hospitals, insurers, and lawyers are locked in a battle. Patients are routinely caught in their crossfire.

One major issue with the current system is that it doesn’t bring relief to those who deserve it. A famous study was conducted in 1984, when Harvard examined 30,000 medical records and 3,500 malpractice claims. Only two percent of the patients who had suffered from negligence filed claims. Only seventeen percent of the claims that were submitted were in any way tied to negligence.^1,3

A second big problem with the malpractice status-quo is that it doesn’t improve long-term safety measures. Here’s why: the tort system uses litigation as its lever for change. The safety movement uses quality improvement analysis. Tort law focuses on the individual. Safety focuses on the process. The tort system’s punitive style drives information down, encouraging secrecy. The safety movement requires a collaborative approach. This encourages openness, transparency, and continuous improvement. With tort law, exposing oneself can end one’s career and harm one’s mental health. In the safety movement, contributing is career-enhancing and therapeutic.²

It may seem counterintuitive, but for medical malpractice to achieve its stated social purposes, we must abandon the emphasis on a tort-based approach and embrace safety. Alternate dispute resolution, no-fault systems, raising fault to the institutional level, and exploring the use of special courts all have merit. ^3,4,5,6,7,8 The key?  Break the cycle of blame and provide a level of security necessary to ensure openness and transparency in our health care system.^1,2

For Health Commentary, I’m Mike Magee.

References

1.Studdert DM, Mello MM, Brennan TA. Medical malpractice. NEJM. 2004; 350: 283-292.

2.Leape LL, et al. Promoting patient safety by preventing medical error. JAMA. 1998; 280:1444-1447.

3.Robinson GO. The malpractice crisis of the 1970’s: a retrospective. Law Contempt. Probl 1986; 49:5-35.Quoted in Studdert et al.

4.Kinney ED. Malpractice reform in the 1990s: past disappointments, future success? J Health Polit Policy Law. 1995; 20: 99-135. Quoted in Studdert et al.

5.Localio AR, et al. Relation between malpractice claims and adverse events due to negligence: results of the Harvard Medical Practice Study III. NEJM. 1991; 324:370-6. Quoted in Studdert et al.

6.Mello MM, et al. The new medical malpractice crisis. NEJM. 2003; 348: 23, 2281-2284.

7.Kakalik JS, Pace NM. Costs and compensation paid in tort litigation. R-3391-ICJ. Santa Monica, Calif. Institute for Civil Justice, RAND, 1986. Quoted in Studdert et al.

8.Weiler PC, et al. A Measure of malpractice: medical injury, malpractice litigation and patient compensation. Cambridge, Mass. Howard University Press; 1993. Quoted in Studdert et al.