The medical malpractice debate

Disagreement exists on how to fix the broken system

There has been much debate about how the country’s medical malpractice system should be reformed. Those doing the debating agree that medical malpractice is a relatively small part of overall healthcare spending in the United States. They also agree that the current system isn’t doing what it should be doing. There is plenty of disagreement on what should be done to fix the system.

“The U.S. medical malpractice liability system has two principal objectives: to compensate patients who are injured through the negligence of healthcare providers and to deter providers from practicing negligently,” wrote Daniel Kessler, PhD, professor of law at Stanford University in a paper evaluating the medical malpractice system published in the Journal of Economic Perspectives last spring. “In practice, however, the system is slow and costly to administer. It both fails to compensate patients who have suffered from bad medical care, and compensates those who haven’t.”

“Many people would argue that (the system) doesn’t work because if you look at the system, one, it doesn’t compensate nearly the number of patients who are injured negligently. Two, … there’s not enough equity among the awards of injury – meaning that some patients can get a lot of money for the same injury versus others getting less,” said Allen Kachalia, MD, JD, medical director, quality and safety, Brigham and Women’s Hospital in Boston.

Last spring, Kachalia provided testimony for the House Energy and Commerce Committee’s hearing on medical malpractice reform proposals. “Some argue that even if the system’s working it’s working very expensively,” he continued. “It takes a long time to settle a lawsuit and it can be very expensive.”

Reform options range from tort reform to disclosure and offer programs to health courts. Tort reform gets the most traction but many argue it doesn’t do enough.

Historically, tort reform has been aimed at trying to address the problem of expensive lawsuits and rising malpractice insurance premiums said Kachalia. Little evidence exists, he said, that those sorts of reforms work to reduce costs or to improve the quality of care patients receive, with the exception of caps (which seem to lower premiums).

“I think we have to start thinking beyond the traditional tort reforms that are so popular with the medical societies,” said economist Amitabh Chandra, PhD; co-author of a paper on malpractice risk by physician specialty that was published in the New England Journal of Medicine in August.

Caps don’t address the emotional costs – the hassles of being sued and the fear of being sued – shouldered by doctors nor do they make whole those patients who suffer actual negligence but never bring a suit against their providers nor do they improve the quality of care Chandra said.

“Most feel that the traditional approaches may fix part of the problem but not all of it,” Kachalia said. “We really need to look at the more innovative approaches out there. Given all the concerns that the different stakeholders have, experimenting and trying things is probably the only way we’re going to get there.”