The Future of Malpractice Reform
Article Outline
There are few topics in health care that incite as much fervor as the American malpractice system. Almost every interested party—patients, physicians, and policymakers—has expressed an opinion on malpractice reform. Physicians, particularly through professional organizations, have long argued that the American malpractice system leads to a multitude of problems, such as an aversion to disclose medical errors, defensive medicine (the overuse of clinical services because of malpractice fears), and limitations on access to care, particularly care that is perceived as high risk.
Policymakers have been divided on how to improve the malpractice system, with some advocating limitations on cases and awards and others promoting increased transparency of medical errors. Historically this divide has made it difficult to achieve universal changes to the malpractice system; however, given health care's prominent status on the national policy agenda, now may be an opportune time for constructive reform.
Improvements to the American malpractice system have the potential to diminish costs, improve quality, and expand access. For example, efforts to rein in health care costs could be more effective if physicians were less inclined to practice defensive medicine. Similarly, attempts to promote high-quality, value-based medical care may be strengthened if physicians felt protected when practicing within the standard of care. But to achieve these goals and promote successful reform, several specific shortcomings of the current system must be addressed.
A System Fraught With Problems
Most notably, the current malpractice system is ineffective at its intended goal—to compensate patients who suffer injury as a result of negligent medical care. The Harvard Medical Practice Study highlighted this inefficiency when researchers found that only 2.8% of medical errors due to negligence led to malpractice claims.1 Thus, the majority of patients who sustain injuries as the result of error and negligence fail to use the malpractice system and most likely do not receive monetary compensation for their injuries. This disconnect likely stems from barriers such as a failure to be informed of medical errors, fear of the effect of filing a claim on subsequent medical care, and need for legal counsel. These obstacles are not as daunting in other systems. For example, Sweden has a no-fault model in which physicians are encouraged to disclose medical errors and assist patients with claims. Claims are assessed by a review panel, and awards are paid on a fixed payment schedule.2
Physician dissatisfaction represents another important problem. Physician discontent is driven by highly variable malpractice premiums, the perception that many malpractice suits are frivolous, and a sense of vulnerability to lawsuits even when high-quality medicine is practiced.
Physician frustration with malpractice premiums stems from the fact that premium increases are often unpredictable and unrelated to a physician's personal history of errors or negligence. Instead, other factors that are not within a physician's control, such as insurer losses on malpractice claims, decreased investment returns, and the increasing cost of reinsurance, drive malpractice premiums. A US General Accounting Office study found wide variation in malpractice premium rates. Over a 3-year period from 1999 to 2002, one insurer in Pennsylvania increased premiums for obstetricians by 165% and for general surgeons by 130%, whereas premiums for obstetricians and surgeons in Minnesota increased by only 2% over the same time period.3 This unpredictability of insurance premiums translates into lack of control over a major practice expense4 and almost certainly contributes to physician dissatisfaction with the system.
Physicians also believe that many malpractice suits are frivolous and not the result of negligent care. In fact, researchers have found that a high percentage of claims filed do not involve a medical error.5 Contributing to the sense of frivolity is the fact that physicians also have been successfully sued for practicing within the standard of care.6
A final problem with the current malpractice system is its potential to break down physician–patient relationships when medical errors occur. Studies have confirmed that doctors are reluctant to disclose medical errors because of fear of litigation.7 The concealment of medical errors can lead to lower quality of care and the collapse of a trusting physician–patient relationship.
Options for Reform
Although there is widespread dissatisfaction with the current malpractice system, there is limited empiric evidence showing which policies improve on its problems and political disagreement on how best to address these shortfalls. We propose 4 options that can improve the system and that are politically feasible.
The first option is proactive early disclosure programs that encourage physicians to openly communicate with patients when medical errors occur. Although critics argue that early disclosure programs might lead to increased litigation,7 these concerns have not been demonstrated in practice. In fact, anecdotal evidence from several successful early disclosure programs at the University of Michigan and the Veterans' Affairs system suggests that patients are less likely to sue when errors are openly disclosed.8, 9 The University of Michigan reports a decrease in claims from 136 in 1999 to 61 in 2006 after it instituted a proactive early disclosure policy.
However, convincing physicians and hospitals to develop early disclosure programs will be difficult unless policymakers provide some level of protection to physicians who openly disclose medical errors. Measures should include protection from litigation if established standards of care are followed, prohibition of the use of apologies as admissions of guilt in court, and financial support to assist hospitals in the development and implementation of early disclosure programs.
A second solution is specialized health courts. In theory, health courts offer fairer judgments because neutral experts act as arbitrators. Awards would be based more on the presence of error, injury, and negligence and less on the severity of the outcome. Health courts also might eliminate problems of the current tort system, such as competing expert testimonies and conflicting guidelines, both of which are difficult to interpret by non-medically trained judges and juries.
Another model that should be considered by policymakers is a no-fault program for specific outcomes. In a no-fault system, compensation is based on whether an injury occurred regardless of the presence of negligence. Because the model eliminates punitive effects, it encourages open communication between patients and physicians, often shortening the time between the event and the compensation. The no-fault system has been successfully implemented in a number of European nations and is used in a limited capacity for birth injuries in Florida and Virginia.2 The no-fault model may be the best system for specific outcomes, such as birth injuries or injuries during high-risk surgical procedures. In such situations, outcomes are serious, resultant medical costs are high, and physician negligence may be difficult to ascertain and may not be important.
Finally, the medical community bears a professional responsibility to better supervise its physicians. Because malpractice litigation is often unrelated to error and more often the result of poor physician communication,10 patterns of litigation should be used to identify physicians who are unprofessional and have poor physician–patient relationships. These physicians should be identified by hospital credentialing bodies and licensing organizations for intervention to improve their communication skills.
Conclusions
The medical malpractice system is wrought with problems, but given the political discord surrounding solutions, sweeping changes such as federal caps on non-economic damages are unlikely. Instead, incremental changes may be the best hope for improvement of the malpractice system.
Our proposed solutions address a number of key problems and might be more readily adopted in the current political climate. However, the effect of these solutions on malpractice premiums is less clear, and further empiric evidence is needed to determine whether these solutions will stabilize insurance costs for physicians and hospitals. Physician support for any of the proposals will likely depend on whether reforms lead to stabilization of malpractice premiums, protection for physicians who practice high-quality medicine, and shelter for physicians who openly disclose medical errors.
Given the important role that medical malpractice plays on cost, quality, and access, policymakers should consider this issue as an important part of health care reform legislation.
References
- Relation between malpractice claims and adverse events due to negligence (Results of the Harvard Medical Practice Study III). N Engl J Med. 1991;325:245–251
- . No-fault compensation for medical injuries: the prospect for error prevention. JAMA. 2001;286:217–223
- . Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates (Document GAO-03-702). U.S. General Accounting Office. June 2003;
- . The cost of medical professional liability. JAMA. 1987;257:2776–2781
- Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med. 2006;354:2024–2033
- . A piece of my mind (Winners and losers). JAMA. 2004;291:15–16
- Patients' and physicians' attitudes regarding the disclosure of medical errors. JAMA. 2003;289:1001–1007
- A better approach to medical malpractice claims? (The University of Michigan experience). J Health Life Sci Law. 2009;2:125–159
- . Risk management: extreme honesty may be the best policy. Ann Intern Med. 1999;131:963–967
- Physician-patient communication (The relationship with malpractice claims among primary care physicians and surgeons). JAMA. 1997;277:553–559
Funding: None.
Conflict of Interest: Dr Callahan is the Chief Medical Officer of FOJP Service Corporation, a not-for-profit insurance and risk management service company.
Authorship: All authors had access to the data and played a role in writing this manuscript.
PII: S0002-9343(10)00351-7
doi:10.1016/j.amjmed.2010.03.013
© 2010 Elsevier Inc. All rights reserved.
