The conventional wisdom among patient safety advocates and legal scholars is that medical malpractice lawsuits impede efforts to improve health care quality bry encouraging providers to hide mistakes. This belief provides the normative basis for ongoing state and federal efforts to curtail medical malpractice exposure. Groups pressing for tort reform, including the American Medical Association, contend that when doctors and other providers are insulated from liability, patients will be better protected from harm.
This Article canvasses the evidence bearing on the connections between malpractice exposure, error reporting, and health care quality, and concludes that the conventional wisdom is wrong. Some evidence, such as the Harvard Medical Practice Study and the history of anesthesia safety, shows that the quality of health care improves as the risk of being sued rises. No evidence shows that malpractice lawsuits cause the quality of health care to decline. Nor does any rigorous evidence show that fear of malpractice lawsuits discourages error reporting-to the contrary, the historical record suggests that liability risk has encouraged providers to discuss treatment risks with patients. Generally, the frequencies with which providers report errors after they occur and discuss errors with patients correlate poorly with liability risk. Thus, there is no foundation for the widely held belief that fear of malpractice liability impedes efforts to improve the reliability of health care delivery systems.
Health care error rates are higher than they should be not because providers fear malpractice liability, but because providers have defective incentives and norms. Since providers often lose money when quality improves, there is no “business case for quality.” Moreover, providers’ norms and attitudes, which are often highly punitive, impede efforts to improve quality by discouraging the creation of work environments in which error-reporting and other predicates for quality improvement can flourish. The tort system’s major deficiency lies in its failure to subject providers to sufficient economic pressure to overcome these defective incentives and norms. The main cause of this shortcoming is the rarity with which injured patients assert their claims. Limiting malpractice liability will not protect patients from harm, and may well have the opposite effect. In fact, contrary to the conventional wisdom, malpractice liability itself has the potential to kick-start quality improvement.
This Article concludes with a series of recommendations for improving the tort system’s potential to encourage quality improvement. The recommendations include new arrangements for error reporting, rewards for making error reports, immunity for providers that follow treatment guidelines, and allowing insurance premiums to rise. In combination, these recommendations create both carrots and sticks encouraging providers to protect patients from harm.
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