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Does medical malpractice liability lead to better quality health care?


Jarrett Dieterle
Legal Intern, Manhattan Institute's Center for Legal Policy

Proponents of extensive medical malpractice liability often suggest that such liability deters doctors from practicing bad medicine. The argument goes as follows: The greater the chance doctors will be held responsible for their negligent actions, the more careful they will be when treating patients.

A new paper by Michael Frakes of Cornell Law School, however, demonstrates the weakness of the relationship between medical malpractice liability and health care quality. The paper analyzes data from 1979 to 2005 and contrasts various medical liability regimes and health quality measurements. Frakes uses "avoidable hospitalizations" and "inpatient mortality rates" as metrics for the quality of health care. Then, he "investigate[s] the malpractice-quality link by exploring the impact of legal reforms, such as damage caps, that arguably blunt the impact of the liability system without effectively changing its structure."

The results of the study suggest a statistically insignificant link between more extensive medical malpractice liability and better quality health care:

The results of this empirical exercise generally cast doubt upon the role that current medical liability rules play in inducing the provision of quality medical care. For instance, the estimated relationship between avoidable hospitalization rates and malpractice pressure, as identified by the adoption of non-economic damage caps and related tort reforms, is both statistically insignificant and small in magnitude, with a 95% confidence interval that is relatively tightly bound around zero. At one end of this interval, the lack of a non-economic damages cap (which is indicative of higher malpractice pressure) is associated with only a 4% decrease in avoidable hospitalizations. That is, at the most, the evidence implies an arguably modest degree of deterrence (with respect to outpatient care). I derive similar findings in exploring the impact of liability pressure on inpatient mortality rates for select conditions.

To be sure, those pushing for greater medical malpractice liability advance other reasons for supporting such a regime apart from better quality care (e.g., the trial bar frequently argues extensive medical malpractice liability is fairer to patients who suffer from negligent care since they can recover greater damages). But, at the very least, this new study has cast doubt upon the notion that exposing doctors to greater liability results in patients receiving better care.


I think the article misses the point.

The purpose of medical malpractice liability is not to improve health care although that is an intended consequence of it.

The purpose is to require a medical wrongdoer to take responsibility for their actions. Whether you are a corporate wrongdoer or a negligent driver, our system of justice requires you stand and take responsibility for your actions.

If you do not do so voluntarily, a jury will be required to impose its' decision on you.

In biblical times someone who caused another harm was responsible to make the injured victim whole. That sense of justice has carried over to our democracy thousands of years.

Present day justice demand accountability and the payment of money damages to make one whole. Most injured victims cannot be physically made whole and we use money as a way to compensate them for their troubles, their pain, the suffering they have endured and will endure in the future.

Economic damages must be included since injuries affect different people in different ways.

Doctors and hospitals who react to settlements and jury-imposed verdicts are wise to change the behaviors of their staff when injuries result from negligent care.

The better focus of your article should not be on how health care is impacted by settlements and verdicts, but rather how the medical wrongdoer must take responsibility for their actions.

Gerry Oginski, Esq.
NY Medical Malpractice Trial Lawyer

Of course, if you take the study's conclusion that liability is irrelevant to the actual provision of care at face value, then it also blows up any argument that liability causes "defensive medicine."

I have been sued 4 times over the past 50 years. I have never lost a suit and no payment has ever been paid on my behalf for any suit.

What has this taught me?

Patients are ungrateful, in spite of the fact that I saved lives in 2 instances, I still have been sued of minor complications.

Lawyers are avaricious, and are more interested in collecting large fees rather than serving justice.

So called "Medical experts" have advertising on line, and will give any opinion a lawyer wants, in return for a large fee or a percentage of the award.

There are several flaws immediately obvious in this paper. First and foremost is the assumptions that avoidable hospitalizations and inpatient mortality rates are legitimate proxies for the quality of care. They are not, as many factors influence these two besides quality of care. In addition, most medical care is delivered outside the hospital, yet the only two assumed indicators of quality used are related to hospitalization. The next problem with the article is that a statistical correlation is attempted between the two unproven assumptions and malpractice actions. Anyone familiar with the medical-legal literature knows that (1) a claim is not made in the majority of actionable events [the IOM study] and, (2) that of claims made, legal actions are not ever filed for many and of those filed, many are dropped without compensation. Claims made is the same as malpractice suits. In other words, the author compares a large amount of data influenced by a multitude of unknown factors using unproven assumptions and imprecise definitions. Given the lack of preciseness, it should be no surprise that no correlation or a weak one at best is found. Malpractice claims may or may not influence quality of care (my suspicion is that it does not) but this study does nothing to answer the question. Garbage in, garbage out as the saying goes.

Not really. The results could mean that the types of activities which doctors perform defensively to try to reduce their liability (running every test under the sun, for instance) just don't produce better outcomes for the patient's health, regardless of while the trial lawyers would like to claim.

The study does not separate individual and institutional health care providers and the separate effects the medical liability system has on them. Yet the conclusion is correlated only to physicians. Perhaps medical malpractice liability affects doctors and institutions in a different way and the quality of health care does not solely depend on physicians, which also correlates with the conclusion of this study.

It is difficult to determine what "good quality care" means. If a doctor can look at a patient and make a diagnosis without any testing, is that good care? What if the same doctor (or nurse practitioner) sees the patient and orders $10,000 worth of imaging and tests, then refers the patient to three consultants who order more tests and arrive at the same diagnostic conclusion? The first example probably would cost a few hundred dollars. The second example could approach $50,000 or more. To the uninitiated observer, the second example would represent better care because "they did everything."

But the second example represents a gross inefficiency in utilization of resources.

The idea that somehow doctors respond to the malpractice threat with better care is inaccurate. The horse left the barn on that one decades ago. Internal hospital committees have been pushing for increased testing and consults for more than twenty years, chanting the mantra "we could be sued!" as a justification. Not to mention this is all quite lucrative for the hospital or clinic. All the hospital wants to do is create a large record with lots of tests and consults. Physician judgment became irrelevant years ago. So the threat of litigation has changed what we perceive to be "standard of care."

Tort is a lottery. As such most will never get any reimbursement for loss. Probably 7% of adverse outcomes end up filing suit. There are many barriers: damages less than $100 K, can't find a suitable witness, most juries are not sympathetic, patient doesn't want to go through with it, etc.

So the whole premise is something of a canard.

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Manhattan Institute


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