Our malpractice system needs to focus on patient safety

A malpractice lawsuit claims that a doctor treated a patient negligently and that this treatment caused harm, and it seeks monetary compensation. Negligence means that a physician failed to provide the standard of care expected by the prevailing medical custom. Juries decide cases that are tried, but most cases are settled or dropped. Lawyers get paid (typically 35 percent) only when they win or settle a case.

A successful malpractice system would protect patients from harm via a deterrent effect of lawsuits, compensate patients for harm and exact justice. In addition, a good system would protect physicians from frivolous suits, identify substandard physicians so that medical licensure boards could remediate them or remove their licenses and provide a clear signal to insurers regarding the risk of insuring a physician.

Our malpractice system does none of these well.

Some basic facts: About 4 in 10 lawsuits are filed when there is no physician error. Such cases usually do not result in awards but are stressful to physicians. However, only two in 100 cases of truly negligent care result in malpractice claims being filed, leaving the vast majority of the worst care unaddressed. And when negligent care is identified via a suit, the compensation for harm is inefficient, with 55 cents being spent administering the system for each dollar paid to injured patients.

The result is physicians who feel under assault from the malpractice lottery, patients who remain at risk of substandard care and injured persons who may not receive enough compensation.

The cost of health care has been the central issue of the reform debate. Malpractice increases costs primarily through defensive medicine — the ordering of unnecessary tests, consultations and procedures designed to demonstrate care and caution if a physician is sued.

Defensive medicine is estimated to increase system costs by 1 percent to 9 percent. At 5 percent, this would amount to $125 billion per year, or roughly the cost of covering the uninsured. I suspect that actual savings from even the most robust malpractice reform would be far less, primarily because there are multiple motivations for what is termed defensive medicine, including habit, monetary incentive and a culture that assumes more is better.

Even though I doubt it would save much money, malpractice reform that is responsive to physician concerns is a crucial stepping stone to any comprehensive reform. We must slow the rate of growth in health care costs, and it will take big changes throughout the system. We will not achieve this without the buy-in of doctors, whose professional judgment runs the health care system.

My experience with physicians who are colleagues and friends suggests that, though physicians differ in many ways, they have one similarity: an obsession with getting sued. I think this is borne of the cost (time and money) of their training and the fear that one lawsuit could take it all away.

I have heard many physicians say that, although income is important to them, what they really would like is to practice medicine as a calling and not to constantly worry about getting sued and paying high malpractice premiums. We should take them up on this offer.

First, we need an immediate federal cap on noneconomic damages in lawsuits (the AMA endorses a $250,000 cap). In return, all persons need to be insured, reducing the pressure of having to sue to obtain money needed to finance care for a person rendered uninsurable due to an injury.

Second, we need to transition from addressing medical errors via an oppositional system toward one focused on patient safety and learning from mistakes. This openness is impossible in the current system. As part of this change, the medical profession would have to take more seriously the policing of its own.

Third, we should reconsider how liability insurance is provided. Many factors related to rising malpractice premiums have nothing to do with claims experience, including investment losses of insurance companies, insurance losses in other sectors and marketing behavior in which insurers cut premiums to gain market share only to raise them rapidly later to avoid insolvency. We need stable insurance that reduces physician worry, is consistent with a patient safety approach and compensates injury efficiently.

Finally, and perhaps most importantly, we need physicians to lead the way in systematically reconsidering how medicine is practiced in the United States. We cannot afford the current system, and we are not getting our money’s worth from what we spend. Currently, any large change in the system would be met by most physicians with the retort: What about lawsuits?

No nation has succeeded in major reform without supportive physicians. The only way to get from here to there is to give physicians a substantial victory in the area of malpractice and then to appeal to their professionalism and sense of calling to care for patients in helping us create a sustainable health care system.

Donald H. Taylor Jr. is an associate professor of public policy at Duke University and blogs at freeforall–a health policy discussion.

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  • Greg

    Agree with this post, especially with the concept that in the face of decreasing pay, decreasing autonomy, increased workload, decreased time with patients, and a hostile and adversarial relationship with those we do serve, there is very little incentive in the American medical system for doctors to make significant change.

    Meaningful malpractice reform was one possible carrot for doctors in the face of many, many sticks, but even that got whittled away in the recent political fight. More than just caps, meaningful reform would address the 4 out of 10 cases that the author asserts are filed with “no physician error.” It’s no surprise that he finds physician friends obsessed with malpractice when they are constantly fearful of being sued for any reason whatsoever, even when they do everything exactly right. And when they are taken to court, they have to endure the “dueling experts” charade and a Monday-morning quarterbacking of every decision made, relevant or not, which can drag on for months and cost large amounts of money both in terms of payments made to the legal system and opportunity cost of hours not worked.

    To add insult to injury, at the end judgments in these cases are not made by individuals versed in medicine, or science in general, or even the Age of Reason-era ideals of the disciplined process of inquiry and experimentation, but by a “jury of your peers.” Please remember that of these peers, i.e. the American people, a full 50% (!) believe the world is less than 10,000 years old. 20% believe Neil Armstrong never landed on the moon. Up to 30% believe Saddam Hussein was behind 9/11, and a significant portion of others believe it was an ‘inside job’ done by the US government. Yet these are the individuals who are entrusted with deciding complicated malpractice cases where subtle readings of highly technical medical literature can often make or break a defendant. What scares physicians about malpractice most isn’t being caught for doing something wrong. Most doctors are fair and understand that compensation should be given to those who are legitimately harmed by medical mistakes. But what keeps doctors awake at night is the fear of being dragged to court, after having done everything right, to make a case to an panel of jurists who would have fit in quite nicely in any court in Inquisition-era Spain.

    • pj

      i suggest we all check out plaintiff’s Atty Brian Nash’s column in this blog as well. Even if you hate lawyers, it’s informative to see things thru his eyes.

  • Marc Gorayeb, MD

    Disagree with the post. Generic platitudes that can’t be effectively transformed into action.
    Attack true negligence. We have the finest medical training in the world, and we don’t produce physicians having a 50% rate of negligence. (e.g., the lawsuit rate among obstetricians).
    Use unpaid physician volunteers from outside the state in which a case is brought to opine on the standard of care. Some details would need to be worked out to ensure objectivism, but it attacks the heart of the matter. Money and conflicts of interest obscure the truth.

    • sam reyes

      Conflict of interest and greed caused exorbitant malpractice awards is not acceptable. tort reform is definitely needed. no one is perfect but self interest and instinct of “ME FIRST” dominate the current trend. This hold true causing our economic crisis not just in medicine.

  • Muddy Waters

    “…and then to appeal to their professionalism and sense of calling to care for patients in helping us create a sustainable health care system.”

    So once again, physicians are the ones who have to be the bigger men. Why to ethics and compassion only apply to us…oh why!

    • http://thedocsquawk.com thedocsquawk

      Are you saying a substantial victory in the area of malpractice is not a fair bargain for an appeal to your professionalism?

      • Matt

        How is it a “substantial victory” for your insurers to save a few dollars that they may, or may not, pass on to you?

  • Matt

    What does capping damage awards have to do with patient safety? Are patients better off because insurance companies make more money?

    And while the author endorses a federal damage cap, the only way that matters to a state law action is if medicine is essentially federalized. You guys do understand that right? So if that’s a “victory” to you, then by all means pursue it.

    “But what keeps doctors awake at night is the fear of being dragged to court, after having done everything right, to make a case to an panel of jurists who would have fit in quite nicely in any court in Inquisition-era Spain.”

    Juries decide for physicians the vast majority of the time? It’s this kind of nonsensical statement that indicates that the writer has no clue of the thing he fears.

  • jenga

    Matt,
    What does keeping the current system have to do with patient safety? It doesn’t work. The current system that has utterly failed the patient and physician by every measurable statistic, you disputed none of Taylor’s statistics. Lawyers haven’t improved the current system, if they had you would be able to show a statistic that shows what lawyers bring to the system. But you can’t and wont. If you can’t prove what you add, why are you needed? Your second question. He discussed the current problem with insurance companies.
    You understand that we are currently federalized. You’ve heard of Medicare and EMTALA. You understand those right?

    • Matt

      Jenga,

      You’re criticizing a system for something it isn’t designed to do. The justice system except for in egregious situations where punitives are a factor (drunken surgeries, for example) isn’t designed to improve the delivery of medical care.

      It’s designed to determine the damages resulting from negligent harm. So criticizing it for not doing something it isn’t designed to do makes little sense.

      As for your federalization, you have the option to decline federal dollars and not be subject to EMTALA or take Medicare patients. While I realize that’s not always financially viable, the option remains. For now.

      As to his statistics – which ones? The defensive medicine one? Physicians can’t even agree on whether this procedure or that procedure in a given situation constitutes “defensive medicine”. And if it truly did work, then those states that had the caps he suggests, and have had them for decades, would have cheaper healthcare costs. Yet they don’t. The claim of “we’ll save all this money if we have caps” has been proven false in one of our largest states – California. They’ve had “reform” for 3 decades plus.

  • imdoc

    The federal government can provide restriction on liability when it so desires. Matt can you refute that ERISA law protects employer sponsored plans from unlimited damages? HMO’s have used this extensively to enforce ‘utilization review’ which effectively forces doctors to indemnify the health insurer.

    • sam reyes

      When an MD is demoralized from fear…the core and fibers of his well being suffers….so is his clear thinking and safety when dealing with patients… thats where the connection lies. Safety in every unit of health care system has been a priority in any institution decades back and continue to be improved specially at our modern elecetronic era and always been over emphazised. I have seen the havoc in the early 80 when the tri-state region of west virginia ohio and pensylvania was hit with catastropic malpractic awards over 20 million dollars and malp insurances companies quit till the state intervined. few of my friends and collegue quit, one of them had a stroke. Something has to be done in all fairness specially in health care.

    • Matt

      imdoc,

      ERISA is a federal statute, and the claims arising from it are primarily sounded in federal statutory law, and are not analogous to a common law negligence suit, which is a state law action.

  • Matt

    “. I have seen the havoc in the early 80 when the tri-state region of west virginia ohio and pensylvania was hit with catastropic malpractic awards over 20 million dollars and malp insurances companies quit till the state intervined.”

    What were the injuries that prompted $20 million awards? How much of that money went back into the healthcare system to pay for past and future damages.

    As for Pennsylvania, one of its largest malpractice insurers went bankrupt due to what regulators essentially termed looting by its executives. So they are entitled to protection because their colleagues are thieves?

  • imdoc

    I brought it up because it is directly analogous. In 1974, Congress passed ERISA (aka the HMO Act) on the theory that aggressive utilization review would reign in costs. To protect the employer based plans from bankruptcy, a “pre-emption” clause was included expressly for the purpose of remanding lawsuits to federal court and out of state courts. Limitation on damages is also spelled out.
    So, again Congress can pass federal tort reform if they want without wholesale federalization of the system.

    • Matt

      Claims against ERISA plans are sounded in contract, not tort. Since such plans are a wholly statutory creation, and do not come from common law, they are not in the least analogous.

      What’s more, as they are not claims existing at the time of the Constitution, the right to a jury is not protected. You’re comparing things that are night and day.

  • http://www.medicaljustice.com Shane Stadler

    You make several points that we have stated for years; our current system protects neither patient nor physician. Instead, it creates an adversarial relationship of mistrust and doubt which results in tremendous waste and loss. Real reform would free resources that could be re-deployed to create a revolution in health care. We work with thousands of physicians who echo the comments of your friends and colleagues.

  • gzuckier

    At risk of riding a dead horse, the basic bedrock underlying malpractice overuse is that huge future medical costs from an undesirable outcome or bad event have to be paid from somewhere and in today’s healthcare system, it’s a game of hot potato. It’s got nothing to do with who, if anyone, is responsible, or if there was any negligence involved; the incidence of suits among obstetricians mentioned is the perfect example. A family with a newborn with serious problems can face crushing lifetime medical costs. They can’t pay for them; the medical insurers have written lifetime limits into the policy; who’s going to pay? The jury sees a family, like their own, facing the loss of everything for no fault of their own; even those who have the self-discipline to resist unconscious bias (who are probably not on a jury) have to wonder whether the MD might not be able to deal with the blow better than the family, given that it’s nobody’s fault. And unfortunately, the malpractice insurer seizes on this as a pretext to charge more. And the fact that the lawyers make a comfy living off the whole deal doesn’t help, either.

    Look at it this way; it’s a small price to pay to stave off the dreaded spectre of Socialized Medicine which would pay for these kinds of things.

  • http://www.ServantLawyership.com Kathleen Clark

    My frustration with the caps on damages/tort reform is that it appears to exclude any consideration of disclosure by the physician. The surveys and statistics tell us how many patients sue their physicians and how many get dismissed, settled or go to verdict. If a number get dismissed, that is considered evidence that they were not worthy, when in fact they could be cases that are too difficult to prove and/or too expensive to continue to resolution. Aside from that aspect of the conversation, physicians’ responsibility under the AMA Code of Medical Ethics require: “Situations occasionally occur in which a patient suffers significant medical complications that may have resulted from the physician’s mistake or judgment. In these situations, the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred. Only through full disclosure is a patient able to make informed decisions regarding medical care….Concern regarding legal liability which might result following truthful disclosure should not affect the physician’s honesty with a patient.”
    I mention the AMA Code of Medical Ethics because it seems to me that the thinking behind it would suggest that whether or not the physician informed/fully disclosed to the patient should be a consideration in the conversation. How can we continue to have this conversation with no information about what occurred BEFORE the lawsuit was filed? If many physicians are sued and haven’t disclosed/had a follow-up conversation with patients, whether there was error or not, shouldn’t we be talking about that as well? Wouldn’t there be an opportunity for tremendous learning if we looked at the ENTIRE picture?
    Caps on damages just punish the injured patient. Shouldn’t the physicians’ role in the process be examned as well?

  • ANON

    Malpractice does happen. Negligence does happen. Mistakes happen. Frivolous lawsuits happen. The best system would be one that was honest at all levels. Patient who are victims of true negligence and malpractice deserve justice. Doctors who make honest mistakes and own up to it, deserve the opportunity to correct the mistake, apologize and do better the next time. Frivolous lawsuits should be frowned upon and Doctors, who are the victims of this, deserve some justice as well.