Other Points of View
It Is Patients Who Most Need Tort Reform
N Engl J Med 2009; 361:e115December 17, 2009
- Article
There is a poor correlation between competence of care and malpractice lawsuits.1 The arbitrary-seeming nature of malpractice litigation places a dark cloud over all medical practice, encouraging wasteful defensive medical spending. According to a 1996 study, reforms that directly limit liability (such as caps on damage awards and abolition of punitive damages) reduce hospital expenditures by 5 to 9% within 3 to 5 years after adoption, without affecting clinical outcomes.2 This finding may significantly underestimate the true overall effect, since the study was based on Medicare patients and most lawsuits involve younger patients.
Yet regardless of the costs, the primary question is whether the current tort system is the best we can do to compensate patients. Unless you are a trial lawyer, the answer is clearly no.
The tort system is an extremely poor means of recourse for patients. In a study of more than 30,000 hospitalized patients among whom 280 adverse events had occurred due to negligence, only 8 patients (for a weighted rate of 1.5%) filed malpractice claims.3 Furthermore, patients who experienced an adverse outcome that was not due to negligence may also deserve compensation, but lawsuits over medical care that did not involve error were less likely to result in compensation; indeed, the patients who find themselves in such situations are presumably less likely to be able to obtain representation in the first place.4 In addition, according to the same study, administrative costs consume 54% of malpractice awards. This is a highly inefficient use of funds.
It is patients who are harmed the most by the current tort system, both because it fosters limitations in access to care and because it relies exclusively on a selective, protracted, and unpredictable legal process. The absence of negligence diminishes a patient's ability to receive compensation for a bad outcome. The poor correlation between lawsuits and medical competence not only fuels defensive medical practices, but also means that little is done to target the physicians and systems that pose the greatest risk to patients.
A far better approach would be first to provide a general insurance fund, administered through arbitration or medical courts, to compensate patients for bad outcomes whether or not they are due to any demonstrable fault, and second to create a system for identifying and correcting systemic and individual flaws in a nonthreatening and nonaccusatory fashion. By dissipating the dark cloud of litigation and focusing instead on ways of improving patient care and compensating patients for bad outcomes regardless of fault, such a system would optimize care, mitigate defensive medical practices, and ultimately minimize costs.
Kenneth Coleman, M.D.
Cardiology Associates of Schenectady, Schenectady, NYNo potential conflict of interest relevant to this article was reported.
This article (10.1056/NEJMopv0909846) was published on December 2, 2009, at NEJM.org.
- References
References
1
Brennan TA ,Sox CM ,Burstin HR . Relation between negligent adverse events and the outcomes of medical-malpractice litigation. N Engl J Med 1996;335:1963-1967
Full Text | Web of Science | Medline2
Kessler DP, McClellan M. Do doctors practice defensive medicine? NBER working paper no. 5466. Cambridge, MA: National Bureau of Economic Research, February 1996.
3
Localio AR ,Lawthers AG ,Brennan TA , et al. 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
Full Text | Web of Science | Medline4
Studdert DM ,Mello MM ,Gawande AA , et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med 2006;354:2024-2033
Full Text | Web of Science | Medline
