Management or Avoidance of Medical Malpractice Crises?: Time to Choose FREE TO VIEW

As liability insurance premiums flatten at many insurers across the country, it looks as though the third medical malpractice crisis of the last 35 years has passed, more or less. Nationally, the crisis has been smaller in scale than its predecessors, at least in terms of observable spikes in the frequency and severity of claims. Nonetheless, physicians in some states and specialties—proceduralists in Pennsylvania,¹ for example—have felt the effects harshly.

With the return of relative calm to liability insurance markets comes some challenging questions. What have we learned? How is medical malpractice policy the wiser? And what lies ahead? Firm responses to these difficult questions are several years away. Tort scholars and policymakers will continue to rake through the coals. But several observations are possible at this early stage.

The tort reform debate is here to stay. Despite the sturm und drang, it is now clear that this is an argument that legislators, physicians, and lawyers in the United States like to have, or at least they appear to prefer it over serious discussions about more fundamental and far-reaching system reforms. The roles of the respective actors in the drama are well rehearsed; the lines are delivered on cue.

Physicians and their liability insurers cite the unscrupulous behavior of trial lawyers and demand legislative changes that would make it harder for patients to sue, win, and secure large amounts of compensation. The plaintiffs' bar, and some consumer rights organizations, counter that these are unacceptable abridgments of access to justice; they emphasize the prevalence and debilitating consequences of medical error, and argue that the behavior of liability insurance executives, not lawyers, drives premiums higher. Both sides habitually back their positions with data that are selective and, in some instances, brazenly manipulated. Consider one possible explanation for why, as Nepps² observes, 11 of the 17 states the American Medical Association designated as “in crisis” did not have caps: the absence of a cap independently influenced the designation. Pity the legislator who must sift through such radically polarized and confusing claims. The easiest course is to accept the mantra of one side, and many do just that.

Despite these staples, several aspects of the most recent tort reform debate are novel. The involvement of the White House and Congress is one example. During President Bush's re-election campaign in 2004, medical malpractice reforms were a top priority in the health policy agenda of the administration. The centerpiece of the Bush proposal was a $250,000 cap on noneconomic damages,³ a reform modeled closely on the law in California. The ensuing Congressional debate focused almost exclusively on this cap. The nature of this debate—waged at the federal level and fixated on a single reform measure—was not a feature of previous crises.

Do caps work? Well-controlled studies⁴ have shown that caps on damages significantly reduce compensation payments, inside and outside of court, possibly by as much as 30%. However, caps do not appear to affect the frequency of claims and, despite reducing payouts, their effect on the liability insurance premiums physicians pay is surprisingly modest.⁴ In other words, from the physician's perspective, damages caps are considerably less than the panacea proponents so often paint them to be.

Another development, and a very welcome one, is that patient safety has entered the medical malpractice discussion, albeit fairly meekly. The Institute of Medicine 2000 report, To Err Is Human,⁵ gave the issue of medical error tremendous public prominence. It could not be ignored. Consequently, for the first time, observers of and participants in the tort reform debate were moved to ask how tort reforms mesh with the urgent need for advances in the safety and quality of health care. The answer, of course, is that they mesh not at all. Tort reforms are not aimed at those objectives and will have little or no impact on them. It is a short step from this realization to the view that merely revisiting traditional modes of tort reform represents a lost opportunity to better integrate the objectives of medical injury compensation and quality improvement.

The imperative to integrate becomes even stronger if one searches, as Luce⁶ does in his instructive article in this issue of CHEST (see pages 1044 and 1051), for measurable improvements in safety that can be attributed to malpractice litigation. Hard evidence of what tort scholars refer to as the deterrent effect is vanishingly thin.⁷ The storied example of anesthesia⁸ is the exception, not the norm.

There has to be a better way. Luce ably describes a number of the creative reform options that have been proposed; they deserve to be tested.⁹ The health courts model, a reform option that I have been closely involved in developing over the past 4 years with colleagues at the Harvard School of Public Health and Common Good, is a particularly promising proposition.¹⁰

Unfortunately, it is hard to resist Luce's⁶ conclusion that the United States is “unlikely to radically alter its present malpractice system” any time soon. But if there is leverage point in the longstanding deadlock on meaningful reform of the medical malpractice system, the error-prevention imperative is it. Countries like Sweden, Denmark, and New Zealand that operate medical injury compensation systems untethered negligence are moving aggressively to harness the power of their caseload to learn about error and drive improvements in processes of care.¹¹ There is every reason to believe that they will succeed. In so doing, they will show up negligence-based systems. The secrecy, adversarialism, and culture of blame intrinsic to the tort system are fundamentally incompatible with institutional learning, transparency, and provider-led quality improvement efforts. Ultimately, this is the graveyard the deterrence objective cannot avoid.

Nepps² describes well the basic dynamics of the malpractice litigation.² Responses to the most recent malpractice crisis have not changed them. Indeed, there has been much less tort reform since 2000 than occurred in the wake of the previous crisis in the mid-1980s. If a fourth malpractice crisis eventuates, chest physicians, as Luce's⁶ claims data show, have more to fear than most types of practitioners. In the absence of meaningful system reform, it is almost certainly a question of when, not if.