The Most Obvious Medical Malpractice Solution in the World

We thought we’d be a little wonky today - forgive us because it’s important.  Last Thursday, we briefly mentioned the just-released Rand Institute for Civil Justice study that found actual empirical support for the most obvious thing in the world but something you almost never hear the medical or insurance lobbies admit: that the best way to reduce malpractice litigation – for everyone, including doctors - is not to take away the rights of injured patients, but to reduce the amount of malpractice!  As Rand summarized it, “improvements in safety performance have the potential to benefit both patients and providers and to align their interests while reducing litigation.” 

Now comes the really wonky part but bear with me.  Here is what Rand actually found in its study of California malpractice:

• [There is a] highly significant correlation between the frequency of adverse events and malpractice claims: On average, a county that shows a decrease of 10 adverse events in a given year would also see a decrease of 3.7 malpractice claims.
• We also found that the correlation held true when we conducted similar analyses for medical specialties—specifically, surgeons, nonsurgical physicians, and obstetrician/gynecologists (OB-GYNs).  Nearly two-thirds of the variation in malpractice claiming against surgeons and nonsurgeons can be explained by changes in safety.  The association is weaker for OB-GYNs, but still significant.
• These findings are consistent with the basic hypothesis that iatrogenic harms are a precursor to malpractice claims, such that modifying the frequency of medical injuries has an impact on the volume of litigation that spills out of them.  Although this is an intuitive relationship, it is not one that has been well validated previously.  It suggests that safety interventions that improve patient outcomes have the potential to reduce malpractice claiming, and in turn, malpractice pressure on providers.
• [N]ew safety interventions potentially can have positive effects on the volume of malpractice litigation—a desirable result to seek out, even beyond the immediate impact of medical injuries avoided.
• Presumably, the one thing that all parties to the debate can agree on is that reducing malpractice activity by reducing the number of iatrogenic injuries is a good idea.  Arguments about the merits of statutory tort intervention will surely continue in the future, but to the extent that improved safety performance can be shown to have a demonstrable impact on malpractice claims, that offers another focal point for policymakers in seeking to address the malpractice crisis.  Based on the results of the current study, we would suggest that that focal point may be more immediately relevant than has previously been recognized.

As a side note, until federal law changes, I don’t know what we do about military hospitals where, unfortunately, reducing litigation isn’t much of an incentive for safety because those doctors and hospitals there are immune from suit. Just ask the Arlington Texas man who “lost his legs in a botched gallbladder surgery at a military hospital in California.”