“There are two things to fear in life,” Justice Brandeis once said: “death and litigation.” Most physicians would agree. Win or lose, the process of being sued for malpractice will forever change the way he views both his profession and his patients. No wonder fear of malpractice drives so much costly and potentially hazardous “defensive medicine.” Nevertheless, some have argued that malpractice suits protect patients by forcing hospital boards to take a closer look at patient safety issues. Perhaps—but the high administrative costs associated with malpractice suits, combined with the effect they have had on the doctor-patient relationship suggests that there should be a better way to shield the sick.
An article in Sunday’s New York Times points to a new approach. “For decades,” the Times reported, “malpractice lawyers and insurers have counseled doctors and hospitals to ‘deny and defend.’ Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.” But with providers “choking on malpractice costs and consumers demanding action against medical errors,” some of the nation’s leading hospitals are trying out what is, for them, a new strategy—reveal and apologize. It’s a simple solution: telling the truth. The mounting cost of malpractice claims may finally be having a constructive effect. The evidence suggests that if more hospitals adopt this approach, there could be great benefits, both for physicians and for patients.
Nevertheless, there are risks for health care providers. “Disclosure is the right thing to do,” an article published in Health Affairs last year observed, but as “pressure mounts on physicians and hospitals to disclose adverse outcomes…and medical injuries” they should be aware that the volume of claims would rise and providers should be ready for “the financial consequences.”
After all, we are, as everyone knows, a litigious society. President Bush has warned us, repeatedly, of “what’s happening all across this country…lawyers are filing baseless suits against hospitals and doctors. That’s just a plain fact. And they’re doing it for a simple reason. They know the medical liability system is tilted in their favor.” In the nation’s “judicial hellholes,” the President of the United States cautions us, “every claim filed by a personal-injury lawyer brings the chance of a huge payoff or a profitable settlement out of court…This liability system of ours is out of control.”
The President is not alone: you have read the news stories about the multi-million dollar cases, and the op-ed pieces declaring that they are now the norm: emotional juries and prejudiced courts are persecuting blameless doctors, driving up the cost of health care while forever ruining careers.
As is so often the case, what “everyone knows” just isn’t true.
Consider these facts from a study conducted by the Harvard School of Public Health and published in the New England Journal of Medicine.
- “The great majority of patients who sustain a medical injury as a result of negligence do not sue.” Indeed, the New York Times reports,
although “recent studies have found that one of every 100 hospital
patients suffers negligent treatment, and that as many as 98,000 die
each year as a result . . . only a small fraction of injured patients
— perhaps 2 percent—press legal claims.)
- “Just 1.1 percent of all doctors accounted for 30 percent of all
malpractice payments made between 1990 and 2002, while only 5.2 percent
of doctors were responsible for 55 percent of all payouts.” A very
small group of doctors are losing or settling malpractice lawsuits, but
they are losing big.
- “Eighty percent of claims involved injuries that caused
significant or major disability (39 percent and 15 percent,
respectively) or death (26 percent).”
These numbers undermine much of the conventional wisdom about medical
malpractice lawsuits. Before taking a closer look at the analysis,
note that this report comes, not from Harvard’s Law School, but it’s
School of Public Health. In other words, this is not a cabal
representing lawyers who should be sitting on the bottom of the ocean.
These researchers are interested in our health as a nation.
The study’s size also lends it credibility. (As the authors note,
“Previous investigations of the relationship between the merits and the
outcomes of malpractice claims involved the use of small numbers of
claims; focused on a single hospital, insurer, specialty, or type of
injury; involved the use of very limited information in the
determination of merit; or relied on the insurer’s view of the
defensibility of the claim as a proxy for merit rather than on
independent expert judgment. This study was designed to overcome those
limitations.) The researchers cast a wide net over Northeast,
Mid-Atlantic, Southwest, and West, examining records involving some
33,000 physicians, 61 acute care hospitals (35 of them academic and 26
nonacademic), and 428 outpatient facilities.
Here is what the investigators discovered:
We may be a litigious nation, but most injured patients don’t sue. This
is in part because they don’t know that an error was made. According to
a study published in Health Affairs in 2005, only about one-quarter of physicians disclosed mistakes to their patients.
Moreover, even if some patients suspect that something went wrong, many
would rather not know that someone made a mistake—especially if they
like their doctor. Patients want to trust their physician.
Acknowledging that you’ve suffered a serious, perhaps permanent, injury
that could have been avoided leads to feelings of regret and rage that
most patients would rather avoid. So, even in the face of disquieting
evidence, patients continue to say, “He’s a good doctor.”
Meanwhile, the study shows that a small percentage of doctors account
for more than half of all pay-outs. While a great many doctors live in
fear of being sued, the reality is that the vast majority will never be
forced to pay an award or even settle a case. Their fears are
This is not to say that there is no basis for their concerns. But
doctors who worry that they could easily become the victims of
“jack-pot justice” because our malpractice system is stacked against
them have been misled by ideologues who object to all personal injury
lawsuits. Their lobbyists regularly play on physicians’ fears by
publishing misinformation. (See for example, “The Whoppers of 2004”
by FactCheck, a non-partisan non-profit group that investigates lies
and half-truths voiced by politicians of all stripes; this excerpt
from Tom Baker’s The Medical Malpractice Myth) and “The Fake Crisis Over Lawsuits: Who’s Paying to Keep the Myths Alive”).
These are the same lobbyists who pushed for, and secured, a Supreme
Court ruling in February shielding medical-device manufacturers from
being sued by a patient injured by a device. It does not matter
if the medical device was “defectively designed or labeled;” if it was
approved by the FDA, the manufacturer cannot be held responsible.
The Bush administration is now pushing to have the same rule apply to drugs that harm or even kill patients.
That said, one should acknowledge that while only a small group of
doctors will wind up being found guilty, or even settling a case, many
more will be threatened with a suit. And even if the charges are
dropped, the process feels, in the words of one doctor, like “a
crucifixion.” Meanwhile, the Harvard study shows that in roughly
one-third of all cases, cases the doctor did nothing wrong. While 97
percent of patients who brought claims had indeed suffered injuries
(and 80 percent suffered death or “significant disability”) ultimately
only sixty-three percent of injuries turned to be caused by medical
error or negligence.
Still, this does not mean that the suits were “frivolous.” The patient
was seriously injured and he or his relatives wanted to know why.
Here is the crux of the problem: traditionally, hospital policy has
encouraged secrecy and denial. As a result, the Harvard researchers
observed, it can be very difficult for a patient to find out “what
happened” and whether the injury was the result of negligence or error
“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.” Hospitals do not usually
open up their records to scrutiny unless a lawsuit forces their hand.
Meanwhile, doctors cover up for each other—“don’t report him,” they
tell colleagues. “It’ll wreck his life. . . Think how hard you worked
to get through medical school and your residency—just the way he did. I
agree—he’s a bonehead. But we can’t report him.”
U.S. Hospitals also foster a “culture of secrecy” according to a 2004 five-country survey of hospital executives published in Health Affairs.
“There is a pervasive ‘club culture’ in which at least some doctors and
other health care professional prioritize their own self-interest about
the interests of patients,” while some hospital executives “act
defensively to protect the institution rather than its patients,” the
The Health Affairs piece elaborated on why safety seems to be
taken much more seriously in other industries: “First, a major service
failure in an industrial plant…may close down production…and entail
huge commercial costs to the organization and its staff…In contrast,
health care organizations usually carry on with their work even after
the most serious failures, and the staff are rarely harmed or even much
affected. Patients bear nearly the entire cost."
This is not to say that physicians or nurses are callous. Realizing
that he or she made a mistake that seriously harmed a patient is
something a health care provider will never forget. But unless someone
investigates, it is often hard to know why the patient’s condition
headed south. So many factors could be involved. Understandably,
physicians often are slow to recognize that they missed something—or
were in some way negligent.
As the Health Affairs piece points out, “the health care
industry is unique in that many of its customers are already or will be
harmed by the disease that brings them to the hospital. No other
industry deals with morbidity and mortality as a routine part of the
production process. This presents a unique challenge in distinguishing
between [harm caused by the diseases and harm caused by medical
treatments.]” Moreover, health care workers become “inured to that
harm. It is normal for patients to die and for treatments to fail, and
so we become accustomed to such events. When things go wrong it is then
more difficult to step outside [this] normalizing mind-set and see the
problems for what they really are: evidence of major health care
A second study published
in the same issue of Health Affairs suggested that competition among
hospitals in U.S. markets also plays a role in the culture of denial
and secrecy. When hospital administrators in Australia, Canada, New
Zealand, the U.K. and the U.S. were asked whether hospitals should be
required to make information about medical errors, infection rates and
mortality rates available to the public, the share of administrators
who opposed the idea was highest in the U.S. and Australia—the two
countries where hospital executives expressed the greatest fears about
losing patients to their competition.
In Part 2 of “Malpractice: Fiction, Facts and the Future,” I’ll look at
the outcomes of malpractice cases, consider just how “fair” the system
is, and discuss reforms that might actually work to reduce the cost and
frequency of malpractice suits while lifting the quality of care.