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The Truth About Medical Malpractice

Course Authors

Maxwell J. Mehlman, J.D.

Within the past 12 months, Dr. Mehlman reports no commercial conflicts of interest.

Estimated course time: 1 hour(s).

Albert Einstein College of Medicine – Montefiore Medical Center designates this enduring material activity for a maximum of 1.0 AMA PRA Category 1 Credit(s)™. Physicians should claim only the credit commensurate with the extent of their participation in the activity.

In support of improving patient care, this activity has been planned and implemented by Albert Einstein College of Medicine-Montefiore Medical Center and InterMDnet. Albert Einstein College of Medicine – Montefiore Medical Center is jointly accredited by the Accreditation Council for Continuing Medical Education (ACCME), the Accreditation Council for Pharmacy Education (ACPE), and the American Nurses Credentialing Center (ANCC), to provide continuing education for the healthcare team.

 
Learning Objectives

Upon completion of this Cyberounds®, you should be able to:

  • Describe how the medical malpractice system works based on the best available empirical evidence

  • Describe the relationship between the recent medical malpractice crisis and the medical malpractice system

  • Describe steps that practitioners and health policy-makers might take to address the real problems of the medical malpractice system.

 

The purpose of this Cyberounds® is to acquaint you with the latest empirical data on the medical malpractice system. In a nutshell, these data show that the system isn't nearly as bad as most practitioners think it is, although it could be improved in ways that this Cyberounds® suggests.

However, before we begin, you should know that I and one of my colleagues at Case School of Law have been commissioned by the Association of Trial Lawyers of America to write a report on malpractice reform. On the other hand, I am not uncritical of the current malpractice system, as you can see by reading my report for the Pew Charitable Trust's Project on Medical Liability in Pennsylvania entitled Resolving the Medical Malpractice Crisis: Fairness Considerations. Moreover, the data presented in this Cyberounds® come from reputable, independent sources.

New Information

Only a few years ago, it was astonishing how little we really knew about the malpractice system. There were many accusations and claims, but very little data. All we had was a 1974 California study by Don Harper Mills and the Harvard Medical Practice Study in 1991. They showed, first, that very few patients who had suffered injury from medical malpractice sued, and second, that a considerable amount of medical error took place. A 2000 report by the Institute of Medicine entitled To Err Is Human later estimated that malpractice caused approximately 98,000 U.S. deaths per year.

As a solution, the authors of the Harvard study proposed switching to a no-fault system. In two reports I prepared for the Special Committee on Medical Malpractice of the New York State Bar, I criticized this as impractical and unfair -- impractical, because it would be very expensive, and unfair, because the way that the Harvard authors proposed to reduce costs was to cut down dramatically on the amount of compensation for the most seriously-injured patients. [See Saying No to No-Fault: What the Harvard Malpractice Study Means For Medical Malpractice Reform (New York State Bar Association, 1991); Bad "Bad Baby" Bills, 20 American J. of Law, Medicine and Ethics 129 (1994)].

The 1990s lulled us into a false sense of security about the malpractice system. After two rounds of malpractice insurance crises in the 1970s and 1980s, we went through the 1990s relatively unscathed, despite the prediction that crises would occur every ten years because of the "insurance cycle." Malpractice insurance premiums stayed stable or even declined. Incomes for virtually all physicians rose faster than inflation. Then in 2001 came another crisis, a bad one. Premiums shot up, especially for certain specialties. There were renewed calls for remedial legislation.

Fortunately, we know a lot more now than we did at the time of the previous crisis in 1985. In addition to the findings of the Harvard study, we have eight other empirical studies. In addition, we have two thorough analyses, one by Tom Baker, Connecticut Mutual Professor of Law, and Director, Insurance Law Center, University of Connecticut School of Law, and the other by David Hyman, Professor of Law and Galowich-Huizenga Faculty Scholar at the University of Illinois College of Law, who is both an MD and a lawyer, and Charles Silver, Co-Director, Center on Lawyers, Civil Justice, and the Media, and McDonald Endowed Chair in Civil Procedure at the University of Texas School of Law. So far as I know, none of these scholars has any reason to distort the evidence. Indeed, Professor Baker holds a chair funded largely by the insurance industry.

This is what they conclude:

  1. The Tort System Does A Good Job of Sorting Medical Malpractice Claims.

    After analyzing the data from all of the available studies, Hyman and Silver state in a 2005 article: "After patients file malpractice cases, the system does a reasonably good job of sorting the wheat from the chaff - a much better job than many proponents of tort reform suggest. Many studies report high frequencies of settlement and payment in cases where experts agree that defendants violated the standard of care and low frequencies when experts agree otherwise."(1) In another analysis in 2006, they conclude: "The bottom line is that a strong correlation exists between the likelihood of receiving payment and the merits of malpractice claims. "[W]hen patients do sue, the malpractice system sorts their claims relatively well."(2) Baker similarly concludes that "[n]egligence matters a great deal to the outcome of a medical malpractice claim"(3) and that "[t]he legal system does a remarkably good job at weeding out weaker claims."(4)

  2. The Tort System Rarely Provides Compensation to Undeserving Plaintiffs.

    Tort opponents are fond of making statements like "80 percent of claims are made against doctors who made no medical error at all" and "one out of four cases in which experts believe the doctor did nothing wrong results in payments."(5) The sole support for these assertions is a portion of the 1991 Harvard Malpractice Study and a follow-up analysis of the same claims in 1996.(6) In a lengthy analysis, Baker points out that the Harvard study "was not designed or powered to reach strong conclusions about the validity of medical malpractice claims."(7) "Indeed," he adds, "the [Harvard] data are as likely to support a very different finding, namely that most malpractice claims are reasonably related to medical management injury and provider negligence."(8)

    Baker is similarly dismissive of the 1996 follow-up: ...[T]he finding from the follow-up closed claim study rests on an even weaker base and is contradicted by a large body of research on closed medical malpractice claims."(9) Baker notes that many of his findings "can be found in caveats and qualifications contained in the [Harvard] report to the State of New York and in publications of by [Harvard] researchers, as well as by early critics of the malpractice claiming aspects of the [Harvard study]. But these caveats and qualifications have not received adequate attention in the public debate."(10) Baker concludes: "What the public heard was that medical malpractice claims are frivolous and that the wrong people get paid. The [Harvard] and the follow up study prove no such thing and the rest of the literature suggests exactly the opposite conclusion."(11)

    Hyman and Silver also studied the Harvard claims. They summarize the findings as "problematic."(12) Like Baker, Hyman and Silver comment that "[a]lthough [Harvard] researchers noted many of these shortcomings in early publications, they did not emphasize them in later works and the study's weaknesses gradually dropped out of the policy debate.(13)

    In any event, the purported findings of the Harvard study have been contradicted by a much more robust study conducted by the Harvard School of Public Health, the same institution that produced the earlier research. The Harvard researchers arrived at the following two conclusions:

    Our findings point toward two general conclusions. One is that portraits of a malpractice system that is stricken with frivolous litigation are overblown. Although one third of the claims we examined did not involve errors, most of these went unpaid. The costs of defending against them were not trivial. Nevertheless, eliminating the claims that did not involve errors would have decreased the direct system costs by no more than 13 percent (excluding close calls) to 16 percent (including close calls). In other words, disputing and paying for errors account for the lion's share of malpractice costs. A second conclusion is that the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter. In a sense, our findings lend support to this view: three quarters of the litigation outcomes were concordant with the merits of the claim.(14)

    Hyman and Silver had access to preliminary data from this study and state that they "confirm that the medical malpractice system does a surprisingly good job of differentiating between plaintiffs who should and should not receive compensation."(15)

  3. Frivolous Lawsuits Are Not A Problem.

    Tort critics attribute many of the perceived problems to the filing of unmeritorious claims. Hyman and Silver dismiss this belief out of hand:

    The frequency with which plaintiffs' attorneys drop medical malpractice cases after taking them might be thought to indicate that these dropped cases were actually frivolous. Empirical studies do not support the inference that plaintiffs' attorneys file lawsuits they know are weak. The studies find that "drops" occur when cases thought to be strong initially turn out to be weak once discovery is performed. The pattern of filing cases that look good and withdrawing them when doubts arise indicates that the malpractice system weeds out weak cases. This is, of course, the intended result of the pretrial process.(16)

    The views of Hyman and Silver are shared by the Harvard School of Public Health researchers themselves:

    The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.(17)
  4. Plaintiffs Attorneys Do Not Refuse to Settle Cases.

    Another accusation that opponents make against the tort system is that defendants are forced to litigate cases because plaintiffs attorneys resist settling them in order to collect a larger contingent fee. Hyman and Silver reject this claim as well:

    A government report argues that lawyers paid on contingency "have incentives to pursue selected cases to the end in the hope of winning the lottery, even when their client would be satisfied by a settlement that would make them whole economically." The unstated assumption is that in the cases that are tried, insurance companies routinely offer malpractice victims settlements that fully cover their economic losses. This is untrue. Professors Gross and Syverud found that in most medical malpractice cases where trials occurred, defendants (or their insurers) made no settlement offers at all.(18)

    Hyman and Silver call the refusal to make settlement offers "settlement hardball," and explain how it accounts for what may appear to be unmeritorious verdicts:

    The account just offered ["settlement hardball"] also explains why juries sometimes find malpractice in cases where providers honestly believe patients received proper care and can offer convincing evidence for this assessment. Long-shot cases are ones in which the evidence weighs in favor of the defendant, but is not conclusive. If enough of these cases are tried, the malpractice system will eventually produce a body of verdicts favoring plaintiffs in cases defendants think they should have won. Some frequency of jury verdicts in favor of plaintiffs with long-shot claims is predictable in a world where providers play "settlement hardball."(19)
  5. There Is No Good Evidence That the Tort System is Causing Problems of Defensive Medicine or Lack of Patient Access to Care.

    Hyman and Silver review the claim by tort critics that defensive medicine is a serious problem: "Doctors, medical societies, insurers, and tort reform advocates argue that defensive medicine is widespread. Philip Howard -- a member of Common Good, an organization that opposes use of courts to regulate physicians -- contends that defensive medicine costs more than $100 billion per year."(20) The reality, they point out, is quite different: "The empirical evidence supporting claims of defensive medicine is far from conclusive, and it appears that Howard's claims are grossly exaggerated." Hyman and Silver quote from an article by Troyen Brennan and Michelle Mello, of the Harvard School of Public Health: "Most defensive-medicine studies have failed to demonstrate any real impacts on medical practice arising from higher malpractice premiums."(21) Baker also dismisses the claim that malpractice problems are leaving patients without access to providers:

    Despite the periodic complaints, no one has ever documented in systematic research that malpractice lawsuits prevent people from getting the medical care that they need. In fact, even the complaints often do not stand up to serious fact-checking. The Government Accounting Office [now the Government Accountability Office] recently checked stories from five states that the American Medical Association said were having a malpractice crisis and concluded: "Although some reports have received extensive media coverage, in each of the five states we found that the actual number of physician departures were sometimes inaccurate or involved relatively few physicians."(22)

    Baker adds that "the real health problem stems from the demographic trends and public policy decisions that created the physician shortage."(23)

  6. Given the Uncertainty Over What Constitutes Proper Care, The Costs of the Malpractice System Are Not Excessive.

    The transactions costs of the malpractice system are high for a number of reasons but the primary reason is the lack of certainty about what constitutes proper medical care. As Hyman and Silver observe: "A great deal of uncertainty exists about the 'best' treatment for particular clinical conditions, and about the 'best' way to perform these treatments. The efficacy of most medical treatments has never been proven, and many treatments have some upside potential. Many treatments can also be administered in a variety of ways."(24) This was recently underscored by a cover article in Business Week, which quoted physician and health care quality expert David Eddy as admitting: "The problem is that we don't know what we're doing."(25) The article continues:

    And while there has been progress in recent years, most of these physicians say the portion of medicine that has been proven effective is still outrageously low -- in the range of 20% to 25%. "We don't have the evidence [that treatments work], and we are not investing very much in getting the evidence," says Dr. Stephen C. Schoenbaum, executive vice-president of the Commonwealth Fund and former president of Harvard Pilgrim Health Care Inc. [Eddy states:] "I've spent 25 years proving that what we lovingly call clinical judgment is woefully outmatched by the complexities of medicine." Think about the implications for helping patients make decisions, Eddy adds. "Go to one doctor, and get one answer. Go to another, and get a different one.' Or think about expert testimony. 'You don't have to hire an expert to lie. You can just find one who truly believes the number you want.'"(26)

    Hyman and Silver concur:

    A final problem affecting healthcare quality is the lack of information regarding the absolute efficacy (let alone cost-effectiveness) of many diagnostic tests and medical treatments. Manufacturers must provide evidence of effectiveness to gain regulatory approval for new pharmaceuticals, but no such requirement applies to medical procedures. Consequently, doctors can administer unproven treatments, and those treatments can rapidly become the standard of care. For example, about 300,000 Americans receive arthroscopic knee surgery for osteoarthritis annually, at an estimated cost of $1.5 billion per year. Yet, a study published in the New England Journal of Medicine in 2002 found that patients who received the surgery handled tasks like walking and climbing stairs less ably than patients who did not. Other common procedures, such as coronary artery bypass surgery and spinal fusion surgery, also fail to help many patients. In one recent high-profile example (bone marrow transplant for advanced breast cancer), the treatment provided no benefits and killed an appreciable number of the women who received it.

    Hyman and Silver go on to describe how uncertainty affects medical training:

    Medical schools and other training programs for health care professionals do not teach modern quality assessment and improvement techniques. Instead, they teach students to make independent judgments and treasure clinical autonomy. This training may often benefit patients by supplying them with confident agents. But professional independence can have a significant downside for patients as well. A great deal of uncertainty exists about the "best" treatment for particular clinical conditions, and about the "best" way to perform those treatments. The efficacy of most medical treatments has never been proven, and many treatments have some upside potential. Many treatments can also be administered in a variety of ways. Given these uncertainties, independent medical agents have significant discretion to recommend procedures that are sub-par and to implement procedures in sub-optimal ways.

    Given the uncertainty within the field of medical itself, it is not surprising that the malpractice system has to expend considerable resources to determine when a patient has suffered a compensable injury. As Professor Frank Sloan of Duke University explains: "[T]o the extent there is highly incomplete knowledge about the effect of particular interventions by health care providers on outcomes, it is unrealistic to expect courts to be omniscient in this regard."(27)

    In any event, the costs of the malpractice system have little impact on the overall cost of health care. Bovbjerg and Berenson observe that even if malpractice insurance premiums decreased nationally by 25-30 percent, the reduction in overall health care spending would be in the neighborhood of only .05 percent.(28) Nor do malpractice costs make a substantial impact on physician incomes. Surveys by the American Medical Association show that "premiums have consistently been a small percentage of total practice expenses except within anesthesiology, which is a result of its having much lower than average premium expenses. When premium increases occurred between 1970 and 1986, and from 1996 to 2000, they had only a small effect on net income."(29)

  7. The Malpractice System Does Not Discourage the Disclosure of Errors.

    Tort critics maintain that malpractice concerns discourage the disclosure and reporting of medical errors, thereby hampering efforts to improve the quality of care. In contrast, emphasizes Baker, "medical malpractice lawsuits improve patient safety."(30) Baker points out that "there is no research testing the conventional wisdom that medical malpractice lawsuits drive medical mistakes underground..."(31) Hyman and Silver agree: "No statistical study shows an inverse correlation between malpractice exposure and the frequency of error reporting, or indicates that malpractice liability discourages providers from reporting mistakes."(32) So does Lucien Leape of the Harvard School of Public Health, one of the authors of the Harvard malpractice study and "a strong proponent of error reporting and a leading advocate for patient safety," who states that "[f]ear of litigation may ... be overblown. No link between [error] reporting and litigation has ever been demonstrated."(33)

    As Baker observes, "to prove that lawsuits drive medical mistakes underground, you first have to prove that mistakes would be out in the open if there were no medical malpractice lawsuits. That is clearly not the case."(34) Hyman and Silver make the same point. In the first place, they point out, there is no evidence that physicians were more forthcoming about disclosing errors prior to the era of liability concerns: "Exhaustive chronicles of malpractice litigation's impact on physicians never once assert that physicians freely and candidly disclosed errors to patients once upon a time, but stopped doing so when fear of malpractice liability increased. Instead, the historical evidence indicates that there was never much ex post communication with patients, even when liability risk was low."(35) Nor is there evidence that there is more disclosure in legal regimes with a lower risk of liability:

    Error reporting is no more frequent in the United Kingdom than the United States, even though malpractice suits are far more common in the latter. If anything, systems for gathering information about errors and health care quality are more developed in the United States, suggesting that liability and provider interest in errors are positively correlated. Reports of near misses and no-harm events are rare even though these errors cannot result in liability. Underreporting and a punitive practice culture were serious problems at VHA hospitals, even though the FTCA protected doctors and nurses who work there from malpractice suits.(36)

    A recent report for the Canadian government by Canadian law professor Joan Gilmour also found no substantially greater incidence of error disclosure in New Zealand despite its history of no-fault and quasi-no-fault compensation for medical injuries:

    In the United States, Canada, the United Kingdom and Australia, health care providers' reluctance to disclose errors to patients, or to colleagues so their experience can be used to develop safer systems is often blamed on fear that the information will be used to fuel lawsuits. In New Zealand, there is no such threat. One would have hoped that practitioners would be more willing to share this type of information, and that quality assurance and quality improvement would be much advanced. That does not seem to be the case. Recent inquiries into substandard care reveal many of the same kinds of deficiencies in incident reporting, complaints handling, clinical governance and management as in other countries. Many patients are not told that a mistake was made in their care, or even that they suffered an adverse event.(37)

    Why, then, are providers so reluctant to disclose errors? Hyman and Silver explain that it stems from many factors:

    [I]t is well known that failures to report errors have multiple causes. These causes include a culture of perfectionism within the medical profession that shames, blames, and even humiliates doctors and nurses who make mistakes; fragmented delivery systems requiring the coordination of multiple independent providers; the prevalence of third-party payment systems and administered prices; overwork, stress, and burnout; information overload; doctors' status as independent contractors and their desire for professional independence; the Health Insurance Portability and Accountability Act (HIPAA); a shortage of nurses; and underinvestment in technology that can reduce errors.(38)

    Hyman and Silver also quote Northwestern University law professor Steven Lubet, who explains that "doctors, being human are simply reluctant to admit mistakes to their patients, and instead seize upon any available rationalization. Today, the excuse is malpractice liability. In the old days, it was the patients' own welfare - they would not heal as rapidly, it was said, if they lost confidence in their physicians."(39) "Given the significance of these factors," Hyman and Silver conclude, "it is naive to think that error reporting and health care quality would improve automatically by removing the threat of liability."(40)

  8. Weakening the Tort System Could Reduce, Rather Than Improve, the Quality of Care.

    The history of the U.S. health care system shows that tort liability increases patient safety. As Hyman and Silver observe: "No study has shown that exposure to liability has a statistically significant negative effect on the frequency of error reports. No study has shown that liability exposure causes health care quality to decline overall. Instead, the best available evidence shows that liability makes a modest positive contribution to patient safety despite the definitive and unqualified claims to the contrary made by patient safety advocates and other critics of the tort system."(41)

    Some of the best evidence comes from the field of surgical anesthesia, which demonstrates the critical role that tort liability plays in promoting patient safety:

    Why did the [American Society of Anesthesiologists] act when it did? According to Ellison C. Pierce, Jr., the leader of the patient safety campaign, two major factors forced the ASA's hand: malpractice claims and negative publicity. "Anesthesiology [malpractice] premiums were ...among the very highest - in many areas, two to three times the average cost for all physicians. By the early 1980s, anesthesiologists recognized that something drastic had to be done if they were going to be able to continue to be insured."(42)

    In short, Hyman and Silver conclude, "[a]nesthesiologists worked hard to protect patients because of malpractice exposure, not in spite of it."(43)

    The Harvard Malpractice Study also found "an inverse relationship between the magnitude of the malpractice risk and the rate of negligent injuries, meaning as the size of the malpractice risk increased, both the frequency of mistakes and the frequency of negligence declined."(44) As the authors of the Harvard study acknowledge: "[T]he litigation system seems to protect many patients from being injured in the first place. And since prevention before the fact is generally preferable to compensation after the fact, the apparent injury prevention effect must be an important factor in the debate about the future of the malpractice litigation system."(45) Hyman and Silver continue:

    The [Harvard study] also demonstrated that patients who are least likely to sue, the aged and the poor, were the most likely to be negligently injured - precisely the result a standard model of deterrence predicts. Finally, the [Harvard study] found that the experience of being sued "made [doctors] twice as likely to take more time in explaining the risks of treatment to their patients," which is the opposite of the effect that patient safety advocates, who argue that malpractice liability discourages candor, predicted. Not surprisingly, the [Harvard study] report recommends that policymakers accept and act on the "indication...that malpractice litigation does have an injury prevention effect."(46)

    As Hyman and Silver explain, the reason why tort liability promotes patient safety is obvious. As the title of their most recent article says, "it's the incentives, stupid":

    Providers are rational. When injuring patients becomes more expensive than not injuring them, providers will stop injuring patients. Stated more delicately, when insurance rates go up, they create a highly salient incentive for providers to improve the quality of the services they are offering. Lowering malpractice premiums through tort reform eliminates this incentive without putting anything in its place.(47)

    In short, the notion that errors would decline if tort liability diminished is groundless: "Many providers have failed to adopt patient safety measures of proven effectiveness, and they have similarly failed to use information already in their possession to protect patients from harm. Given that providers subject to liability for negligence behave in this fashion, it is absurd to think they would voluntarily spend hundreds of millions or billions of dollars implementing patient safety initiatives if the threat of liability were removed."(48)

    If anything, say Hyman and Silver, the deterrent effect of the tort system ought to be increased: "The main problem with the legal system is that it exerts too little pressure on health care providers to improve the quality of services they deliver. ...Safe health care is expensive, and the tort system forces providers to pay only pennies on the dollar for the injuries they inflict. Rather than spend money improving their systems, providers find it cheaper to tolerate the status quo."(49) Baker agrees: "Reducing total medical liability insurance premiums is not a worthy policy goal."(50)

  9. Summary

    No system is perfect. But the available data show that the medical malpractice system works substantially better than critics admit. Its performance is best summed up by Hyman and Silver:

    Patients rarely sue, and those who sit on their rights rarely receive compensation. Virtually all patients who do sue suffered adverse outcomes involving serious physical injuries, and most have plausible or valid claims. Truly frivolous complaints are rare. Far more common are claims that seem strong initially but that turn out to lack merit. The malpractice system weeds out these claims fairly well. Patients with meritorious complaints receive payments more often and receive larger amounts. The system also appears to be stable in important respects. Claim frequency, payment frequency, payment amount, and jury verdicts have all fallen slightly, held roughly constant, or risen slightly. There are no dramatic changes in any of these measures, and the trends that have been noted appear to reflect rising health care costs or the progressive removal of smaller cases from the system.(51)

    In short, conclude Hyman and Silver, "[t]he conclusion that the malpractice system is generally stable and predictable seems surprising only because health care providers and tort reform advocates complain so loudly and so often that it is 'broken' and 'spinning out of control.'"(52)

Suggestions for Improvement

The previous discussion shows that the medical malpractice system works much better than its opponents give it credit for. But no system is perfect. Here are some suggestions for improvement.

  1. Attack the insurance cycle. Although they are not attributable to fluctuations in the legal system, medical malpractice crises do occur, and they make things difficult and unpleasant for providers. Therefore, steps should be taken to prevent them. The target, however, should not be the tort system, but the real cause of the crisis: the insurance industry. In short, we need to attack the insurance cycle directly. Much of the blame for the recent insurance crisis, for example, is attributable to the insurers' practice of reducing premiums in good times in order to increase market share, only to find themselves without adequate funds when times get bad. A solution would be to enable state insurance regulators to control, not only the maximum premium rates, but the minimum.

    Another suggestion is to cushion the blow of sudden changes in the malpractice insurance industry by transferring more of the risk from insurers to reinsurers.

    A third idea is to subsidize premiums for high-risk specialties, the ones that bear the greatest risk, when premiums rise precipitously.

  2. Reduce medical uncertainty. The more practitioners know about how to practice good medicine, the lower the rate of error and the more efficient the malpractice system. Therefore, we should invest more in evidenced-based medicine by commissioning more studies on safety and effectiveness. Given the degree to which medical mistakes are drug mistakes, we also should require drug manufacturers, at a minimum, to conduct safety studies on substantial off-label uses of their products. Finally, we should enhance the effort to create sound medical guidelines, but based on evidence rather than anecdote. For example, only evidenced-based guidelines should be given presumptive weight under the law.

  3. Expand the proper use of apologies and early settlement offers. The most obvious way to reduce the costs of the malpractice system is to reduce medical errors and decrease the costs of paying for them. Disclosure of error is key to the former. So there must be some incentive to encourage disclosure. This incentive can be positive, such as a financial reward for disclosure, or negative, such as punishing non-disclosure. It can be direct, such as immediate cash payment, or indirect, such as greater profit under a pay-for-performance approach.

    Apologies and settlement offers also can decrease transactions costs, but not the way some apology-and-offer programs work. One model to be avoided is the one used by a physician-owned medical malpractice insurance company in Colorado called COPIC, which coaches the "apologists," offers miniscule settlement amounts, and refuses to deal with patients who involve attorneys. A better approach is the one put forth by Sorry Works!, in which providers routinely advise patients to consult an attorney before accepting a provider's settlement offer.

Conclusion

Health care is too important to be allowed to suffer from misperceptions about the malpractice system. Too much time and energy are wasted on pursuing false devils. Too many people use the problems of patients and providers for their own political ends. We need to bring together providers, lawyers and health policy researchers of good will to find ways to improve the way things work. But their deliberations must be based on reality.


Footnotes

1David A Hyman and Charles Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution? 90 CORNELL L. REV. 979-980 (2005).
2David A. Hyman and Charles Silver, Medical Malpractice Litigation and Tort Reform: It's the Incentives, StupId, 59 VAND. L. REV. 1085, 1094 (2006).
3Tom Baker, ReconsIdering the Harvard Medical Practice Study Conclusions About the ValIdity of Medical Malpractice Claims, 33 J. L. MED. & ETHICS 501, 511 (2005).
4Tom Baker, THE MEDICAL MALPRACTICE MYTH 110 (U. Chic. Press 2005).
5Howard, supra note 180.
6A.Russell Localio, A.G. Lawthers, Troyen A. Brennan, N.M. Laird, L.E. Hebert, L.M. Peterson, Joseph P. Newhouse, Paul C. Weiler and Howard H. Hiatt, Relation Between Malpractice Claims and Adverse Events Due to Negligence, Results of the Harvard Medical Practice Study III, 325 N. ENG. J. MED. 245 (1991); Troyen A Brennan, C.M. Sox and H.R. Burstin, Relation Between Negligent Adverse Events and the Outcomes of Medical-Malpractice Litigation, 335 N. ENG. J. MED. 1963 (1996).
7Baker, supra note 3, at 501.
8Id. at 502.
9Id.
10Id. at 512.
11Id.
12DavId A. Hyman and Charles Silver, supra note 2, at 1098 (citations omitted).
13Id. at 1099.
14DavId M. Studdert, Michelle Mello, Atul Gawande, Tejal K. Gandhi, Allen Kachalia, Catherine Yoon, Ann Louise Puopolo, and Troyen A. Brennan, Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 N. ENG. J. MED. 2024, 2031 (2006) (emphasis added).
15Hyman and Silver, supra note 2, at 1099.
16Id. at 1103 (citation omitted).
17Studdert et al., supra note 14, at 2030-2031.
18Hyman and Silver, supra note 2, at 1129 (emphasis in original).
19Id. at 1127.
20Hyman and Silver, supra note 1, at 937.
21Id., quoting Michelle M. Mello and Troyen A. Brennan, Deterrence of Medical Errors: Theory and EvIdence for Malpractice Reform, 80 TEX. L. REV. 1595, 1606 (2002).
22Baker, supra note 191, at 140.
23Id. at 192.
24Hyman and Silver, supra note 1, at 952.
25Medical Guesswork, BUS. WK., May 29, 2006.
26Id.
27Frank A. Sloan, Policy Implications, in Suing for Medical Malpractice 219 (Frank A. Sloan et al. eds. 1993).
28Randall R. Bovbjerg and Robert A. Berenson, Surmounting Myths and Mindsets in Medical Malpractice 5 (Urban Institute Health Policy Brief, Oct. 2005).
29Marc A. Rodwin, Hak J. Chang, and Jeffrey Clausen, Malpractice Premiums and Physicians’ Income: Perceptions of a Crisis Conflict with Empirical EvIdence, 25 HEALTH AFF. 750, 757 (2006).
30Baker, supra note 4, at 93.
31Id. at 97.
32Hyman and Silver, supra note 1, at 914.
33Id., citing Lucian L. Leape, Reporting of Adverse Events, 347 N. ENG. J. MED. 1633, 1635 (2002).
34Baker, supra note 4, at 97.
35Hyman and Silver, supra note 1, at 925-926 (citations omitted).
36Id. at 947-948 (citations omitted).
37Joan M. Gilmour, Patient Safety, Medical Error and Tort Law: An International Comparison 198 (Health Canada Project No. 6795-15-203/5760003 2006).
38Hyman and Silver, supra note 1, at 897-898 (citations omitted).
39Id. at 925, quoting Steven Lubet, Review Essay, Like a Surgeon, 88 Cornell L. Rev. 1178, 1195 (2003).
40Hyman and Silver, supra note 1, at 898-899.
41Id. at 917.
42Id. at 920.
43Id. at 921 (emphasis in original).
44Id. at 916 (emphasis in original).
45Paul C. Weiler, Joseph P. Newhouse, and Howard H. Hiatt, A MEASURE OF MALPRACTICE: MEDICAL INJURY, MALPRACTICE LITIGATION, AND PATIENT COMPENSATION 133 (Harvard Univ. Press 1993).
46Hyman and Silver, supra note 1, at 916, citing Weiler et al., supra note 233, at 127, 132.
47Hyman and Silver, supra note 2, at 1131.
48Hyman and Silver, supra note 1, at 991.
49Hyman and Silver, supra note 2, at 1130 (emphasis added).
50Baker, supra note 4, at 62.
51Hyman and Silver, supra note 2, at 1112.
52Id. at 1129.