How transparency reduces malpractice and defensive medicine

Physician errors have been the subject of discussions about both health care costs and health care quality.

We are told that if we reform the malpractice system — capping damages — that physicians will practice medicine less defensively and costs will go down as a result. We are also told that the quality of care delivered by our health care providers is less than optimal — there are estimates that nearly 100,000 people die from medical errors each year.

At first it seems that the solution to one problem will compound the other. For instance, if we do indeed place a cap on malpractice damages, this might insulate physicians from the risks of making a medical error. Now, I’m not saying that this would cause physicians to go out and make more mistakes intentionally, but it might make them more open to cutting corners as the disincentives would be newly limited. Consequently, we might see a sizable increase in deaths from medical errors.

But I’m not sure that these two problems are at odds. I think, instead, that the solution is more transparency about failures, leading to a better understanding of the cause of such failures, and concrete action plans for avoiding them in the future. With this approach, the number of deaths from medical errors would be reduced because we would know better what not to do.

Simultaneously, the practice of defensive medicine would be reduced because physicians would have a clear set of best practices to follow — and malpractice reform could focus not on capping damages, but on ensuring that physicians adhered to the best practices established by empirical research. After all, this is medicine we’re talking about. It may in part be an art, but it is also a science. And, if anything, it seems to be the science that we value most, so perhaps we should start acting like it across the board.

My inspiration for posting on this topic came from reading a great piece Maggie Mahar wrote about the lack of regulations for hospitals to report accidents — including incidents where patients were accidentally burned during fires in the operating room. Of course, the reporting requirements vary from state to state. But wouldn’t a federal requirement be the way to go here? Or, as Mahar suggests, shouldn’t hospitals want to improve? If so, why don’t they just go ahead and become transparent on their own?

My strong hunch is that advertising your failures isn’t a good business model in the short term — though it could make you the best in the long term. And, what applies to hospitals should, in my opinion, apply equally to physicians. The only way to get stronger is to know — and improve — your weaknesses, not hide from them.

Brad Wright is a health policy doctoral student who blogs at Wright on Health.

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  • madoc

    Check out how easy it is to sue a doctor in Ohio and then tell me what you think.

  • Anonymous

    Capping non-economic damages does not make any one take “short cuts” as you propose. There is still the law suit and that there are no limits on Economic damages that a patient suffers. The fact that you lose days of office or operating days in the hospital defending your case, or giving deposition etc… in and of itself is a deterrent for most physicians. As most physicians who have been sued know, that it is not that you win or lose a case it is just the fact that there is a law suit hanging over your head that is bothersome.
    Lately, most malpractice insurers are encouraging their clients to have a candid discussion with the patient and/or family to explain how a complication took place and what you are doing to prevent this from happening in the future and to actually say sorry that this happened. The principle behind this is that in many lawsuits, it is that the patient or his family has not been given a satisfactory explanation for the bad outcome and they are angry and taking it out on the surgeon or the physician who was “responsible” for that.
    More data is needed before we know if this is true.

    • Alice

      The New York Times did a cover story on this, and it’s covered in a few non-fiction books I read this spring. One of interest is the book William Buckley’s son wrote, Mum and Pup. He shares about the realization that a physician came in and was apologizing for killing his mom. His mother was old, had smoked, and was in ill-health, but a mistake was made.

      An apology is worth the risk. It’s much more healing than a lawsuit.

  • Amos

    Interesting post, but a couple of the grafs are repeated.

    • Kevin

      Thanks — I fixed it.


  • WhiteCoat

    Sue our way to better health. That’s the way to do it.

    If we institute caps we “might” see an increase in deaths from medical errors? This is trial lawyer rhetoric.
    Why don’t we just make all doctors pay $10 million for every mistake they make? That penalty “might” decrease the deaths from medical errors.
    There is no causal link between damage and malpractice deaths. Don’t suggest causation when none exists.

    If you want physicians to follow “best practices” that will prevent all human suffering, then make physicians immune from liability if they follow those practices. You’ll get rid of all that “unnecessary testing” and have a high adoption rate quite quickly.

    Now all you have to do is come up with the way that a physician must act. What do we have to do to be perfect? You give me a list of specific actions to take so that no patients die from my negligent acts and I’ll take action today. By the way, will you accept all the liability if I do what you recommend and am sued for malpractice anyway?

    Yeah. Didn’t think so.

    Everyone wants to be a Monday morning quarterback but no one wants to play in the game.

  • Matt

    “If we institute caps we “might” see an increase in deaths from medical errors? This is trial lawyer rhetoric.”

    That’s almost as ridiculous as if we don’t institute caps physicians will flee, or if we do institute them healthcare will be cheaper. The lack of causation in those claims has never stopped WhiteCoat from making them.

    “What do we have to do to be perfect? ”

    No one has ever required physicians to be “perfect”.

    “You give me a list of specific actions to take so that no patients die from my negligent acts and I’ll take action today.”

    Who are you asking? This is a question you should be asking your colleagues. It’s physicians who set the standard of care.

    “Everyone wants to be a Monday morning quarterback but no one wants to play in the game.”

    Certainly not the injured patient.

  • Jan Barnett

    Allow me to correct Matt only, although I’d love to address many more of the comments above. The standard of care is not set by physicians. It is set by the law. The law requires that no one person needlessly endanger another, thereby causing unnecessary harm. This standard applies to everyone–from motorists to carpenters to lawyers to doctors. Cutting corners in the name of efficiency or convenience may not be the safest way to treat a patient, and patient safety must be paramount in medicine. 100,000 people a year in this country needlessly die because of preventable medical errors! Think of that! More than motor vehicle accidents, breast cancer, and many other “plagues” that no one would shrug off as inconsequential. Think of the economic and emotional devastation caused unnecessarily, and the resulting burden on society and individuals unequipped to support someone’s family needlessly harmed or killed by a healthcare provider who turns the matter over to his for-profit insurance company and forgets about it–remembering only when it’s time to give a deposition. It’s a few hours of the physician’s time–it’s a lifetime for the injured family. Really, the above physicians’ callous, indifferent, and downright cruel attitudes are shocking! What happens in medical school?!?–Do they beat your sense of discipline, ethics, and compassion out of you so you know better how to reap great wealth at the expense of your patients??

  • BobBapaso

    Transparency is a good idea, but in the present system it’s asking to be sued. Every airline crash is analyzed in detail. That’s what’s makes airlines so safe.

    Maybe we could institute a national no-fault medical error compensation program, and then we could institute transparency.

    I don’t know how you can figure 100,000 deaths from them. With traffic deaths you can count the dead bodies on the highway, but in hospitals some people are about to die whether or not a mistake is made. And what is a mistake? Where standards of practice are not written in stone a mistake to one practitioner may be best practice to another, eg, back surgery. For more of my good ideas see:

  • Matt

    ” The standard of care is not set by physicians. It is set by the law.”

    This is incorrect. In a medical malpractice case, the standard of care can only be presented by expert testimony – ie., physicians.

  • Jan Barnett

    100,000 deaths a year in hospitals is the Institute of Medicine’s number — not mine. And, that number does not include needless death from errors during surgeries or primary care treatment.

    Matt, I’ve been trained in the law and practice in tort law, so I have a basis to say that the law sets the standard of care. Expert testimony is required in most cases–for example, where lay jurors need guidance to determine what is reasonable conduct in light of the risks and benefits of the followed treatment. It is not needed, however, where the matter at issue is within the knowledge and experience of laymen, e.g., failing to diagnose a fracture when the x-ray shows a displaced break. All expert testimony is subject to judicial review, and the judge defines the law. The hired guns do not define the standard of care, they present opinions. The jury decides whether the conduct at issue is reasonable and therefore lawful.

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