The United States medical malpractice liability system continues to frustrate physicians and patients alike. Both groups voice a need for significant reform, but often for different reasons. Physicians argue that not only are the risks and consequences of being sued too high, but that they are too often unjustly subjected to lawsuits, sometimes even frivolous ones. On the other hand, many patients and advocates point out that the courts are critical—if not essential—to maintaining accountability and access to much needed compensation when providers refuse to take responsibility for their errors. They argue that the liability system actually needs to be better at providing injured patients with compensation.
When policymakers look at this contentious issue, they find that both the physician and patient arguments have merit. Many claims against physicians relate to care that is not negligent or even in error, and some of these claims generate payouts.(1,2) On the other hand, it is abundantly clear that health care delivery is far from safe and that the vast number of erroneously injured patients go without compensation.(1-4)
The empirical problems with the liability system, however, do not stop there. Other notable detrimental effects that are often cited include defensive medicine and reduced trust in the physician–patient relationship.(5,6) The system is also very expensive to administer, with only about 45 cents of every insurance premium dollar ending up in the hands of patients, with the rest going to lawyers, experts, and other administrative costs.(7)
Even with advocates on all fronts calling for improvements to the system, there seems to have been little change that has addressed all sides of the problem.
Historically, legal reforms have been primarily aimed at addressing physicians' liability concerns.(8) Such traditional reforms include caps on noneconomic damages, pretrial screening panels, and shorter statutes of limitation.(8,9) As data on their effects has accumulated through the years, it appears that most traditional reforms do not achieve their goals of lowering the number of claims or premiums.(8,9) Caps may be one exception, as they do appear to lower premiums, but not the number of claims filed. Caps obviously come at the expense of award sizes for many patients and appear to disproportionately affect elderly patients. Notably, some traditional reforms, such as caps and medical screening panels, have also been struck down as unconstitutional in some states, further diminishing their viability.
Regardless of what the evidence on system performance and reform tells us, many argue there is a larger and more fundamental problem with today's liability system: its assignment of "blame" to individuals. The modern approach to patient safety calls for better systems to reduce error and the creation of a "just culture."(10,11) This approach to safety clashes with the liability system's methods of assigning accountability that causes physicians to worry about the financial consequences, the psychological effects of the litigation process, and the claims-related reporting requirements that follow from lawsuits. Moreover, the stigma felt by providers who have been sued runs counter to just culture principles that seem essential to promote safety efforts. For example, consider the case of a patient harmed by a medication error. An inpatient physician may erroneously write for a medication to which a patient is allergic. The error is intercepted by the hospital pharmacist before the medication is scheduled to be administered and the order canceled by the physician. However, because the pharmacist was not able to communicate this to the nurse in time, the medication is still administered. In this case, does it make sense to assign blame to the physician (or to the other care team members)? Many would argue that it does not and cite cases like these as evidence of the need for liability system overhaul.
However, coming to agreement on what kind of reform is needed has not been easy because of the many competing interests. For example, should reform be designed to support more (to better compensate patients) or fewer (to reduce nonmeritorious claims) claims? One answer is neither: reforms should generate more appropriate claiming behavior. Even this can be problematic because the majority of injuries go uncompensated, and a greater number of claims could exacerbate liability cost and reporting-related concerns for providers. The interconnected nature of the system's shortcomings suggests that any effective solution cannot be aimed at just one target; it must simultaneously address several intertwined targets. This is likely true even for interventions that seek to benefit both providers and patients by shortening time to claim resolution, lowering system overhead costs (dollars spent to resolve claims and insurance company costs), and creating better data collection and feedback for patient safety improvement.
Yet, even when we agree on what problems to tackle, even seemingly benign interventions can meet with skepticism. Take disclosure-and-offer programs, for example. With disclosure-and-offer programs, institutions enact a process to rapidly investigate cases of harm, disclose errors to patients, and make offers of compensation to wrongly injured patients.(12) Despite the principled nature of this approach, some worry that making an offer to a patient without an attorney present may not be fair to the patient and impair a patient's access to due compensation. Others ask, how do we know that the institution is actually disclosing when it should be doing so? After all, in most of these programs, the institution makes its own determination of compensability. Last, what are patients to do if they disagree with the institution's determinations? In these cases, patient advocates point out that patients would still be forced to turn to the broken liability system for redress.
In the face of this gridlock, where should we go? The broad range of competing priorities means that continued advocacy, supported by theoretical arguments, will not suffice. Finding the solution is going to require firm evidence and more research on comprehensive reforms. Fortunately, this is not a foreign concept to medicine. Medicine constantly seeks evidence to drive better care; there is no reason that decisions regarding legal reforms should not be similarly evidence-based. Citing a scant evidence base, the federal government signaled agreement with this principle when AHRQ sought to fund projects that would simultaneously put patient safety first, foster better communication, improve patient compensation, and reduce liability premiums.(13) The agency ultimately spent more than $23 million funding 7 demonstration projects and 13 planning grants in 2010.
The funded demonstration projects and planning grants will not deliver randomized controlled trial–level evidence, but this is not a unique concern in the policy arena. Often, other research methods, including observational studies, can offer important experiential evidence. For example, data from the Lexington Veteran Affairs Medical Center and the University of Michigan's disclosure programs have helped assuage concerns over liability-related effects of disclosure.(14,15) More important, they have provided models for best practices and spurred more interest in implementation and study. In fact, four of the AHRQ-funded demonstration projects were additional tests of disclosure-and-offer programs.(16)
We clearly need a system that provides compensation for injured patients while also maintaining proper accountability. Our liability system does not appear to be up to this task and generates unwanted expenses in the process. The impetus for reform is even greater today given the need to improve quality and safety as well as the need to reduce cost. We have seen the launch of a small number of projects testing newer and more comprehensive interventions. Given the number of stakeholders with varying interests, making decisions based on solid data will be critical. This means that not only can research help us improve the liability system, it is essential.
Allen Kachalia, MD, JDAssociate Chief Quality OfficerBrigham & Women's Hospital
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