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Malpractice litigation wrongly blamed for inconsistent health care

Mark Reutter, Business & Law Editor


CHAMPAIGN, Ill. — Conventional wisdom holds that malpractice lawsuits are the bane of modern medicine, with high insurance premiums driving doctors from the profession and the threat of lawsuits discouraging health-care employees from reporting and correcting medical mistakes.

Examining these claims in a lengthy article in the Cornell Law Review and a shorter article in Regulation, a University of Illinois health-law scholar finds most of the assertions to be without factual basis.

“Health care is substantially more dangerous than it should be,” David A. Hyman, Illinois professor of law and of medicine, concludes in articles co-written with Charles Silver, a law professor at the University of Texas. But malpractice litigation has little to do with the continuing failure of medical providers to deal effectively with the erratic quality of health care.

“In the United States, it is true both that one can obtain the best available care for most maladies and that health-care errors are the eighth leading cause of death, ranking ahead of AIDS, motor vehicle accidents and breast cancer,” Hyman and Silver wrote. For example, hospital-acquired infections are so common that one estimate indicates that proper hand washing by health-care workers alone would save 20,000 lives a year.

In addition, according to the articles, health-care providers “routinely omit indicated procedures of known value, frequently perform treatments that are unnecessary and inefficacious, and employ practice patterns that vary widely and for no good reason. Adverse drug events are distressingly common. Tens of billions of dollars are spent annually on medical services whose value is questionable or non-existent.”

Hyman, who has an M.D. and law degree, teaches health-care regulation and civil procedure. He attributed inconsistencies in health care in part to medical education and culture. Medical schools “do not teach modern quality assessment and improvement techniques. Instead, they teach students to make independent judgments and to treasure clinical autonomy.

“This training may often benefit patients by supplying them with agents who have the confidence to do what is right. But professional independence can have a significant downside for patients as well.” According to Hyman and Silver, many doctors still resist computerized diagnostic and risk-assessment tools that have demonstrated their superiority to a clinician’s subjective judgments. “Physicians often deride such approaches as ‘cookbook medicine,’ and non-physicians have historically deferred to doctors on quality-related issues,” they wrote.

But equally important are the economic disincentives built into the system that favor cost – and cost reduction – over quality of service and patient safety. Fee-for-service compensation, the traditional mode for medical payment by insurers, gives hospitals and physicians an incentive to prescribe treatments and drugs that may not be necessary and to curtail programs that result in a loss of hospital or physician revenue.

“Health-care providers worry less about quality than they should because they are not paid to do so,” the authors wrote. This problem is demonstrated by the comparative lack of information technology applied to medical procedures and treatments, as opposed to the latest software used for hospital billing.

“Hospitals know that computerized physician order entry systems greatly reduce the frequency of medication mistakes, but do not use them because they are expensive. Doctors know that electronic medical records improve the quality of care, but do not use them because most independent practices are too small to afford the technology. Few emergency rooms have patient-protecting software because of limited resource pooling and economies of scale. Over and over, one finds that providers fail to implement proven patient safety measures because they lack incentives to bear the cost.”

In this context, liability laws and malpractice suits have a modest positive effect on behavior, the authors asserted.

“Liability encourages producers of goods and services to exercise due care by forcing them to internalize the costs of their negligence … We do not contend that the civil justice system creates optimal incentives for providers to protect patients from avoidable errors. It does not and, in all likelihood, it never will. Our point is that unless and until changes in compensation arrangements create a business case for quality, providers will continue to provide low-quality care to many patients, and the health-care sector will under-perform the rest of the economy.”

Earlier this year, Congress considered a measure to cap non-economic damages to victims of medical malpractice at $250,000. The American Medical Association, representing doctors, and the Physician Insurers Association of America, a coalition of malpractice insurers, are lobbying for the cap. President George W. Bush has made a limit on non-economic damages a key component of his malpractice-reform proposals.

These proposals may make liability insurance more affordable in the long run, but they will do little to improve the quality of patient care, according to Hyman and Silver. Market-based reforms could do a better job. They recommend such strategies as allowing malpractice premiums to rise and requiring “repeat offenders” to undergo quality audits.

The scholars further recommend that physicians who adhere to evidence-based medical standards developed by the profession be immune from malpractice suits. “If physicians fear malpractice as much as they say they do, the prospect of immunity should be an immediate incentive for the implementation of these standards.”

Hyman is a professor in the Illinois College of Law, College of Medicine and Institute of Government and Public Affairs. Silver is co-director of the Center on Lawyers, Civil Justice and the Media at the University of Texas School of Law.

Their article in the Cornell Law Review is titled “The Poor State of Health-Care Quality in the U.S.” Their article in Regulation is titled “Speak No Evil.”