Malpractice liability plays only a limited and inconsistent role in doing what it should: giving doctors an incentive to practice safely.
Medical leaders and patient groups have made some progress reducing one type of error: infections contracted in hospitals. Organizations like the Institute for Healthcare Improvement and medical schools like Johns Hopkins University have engaged and educated doctors and nurses about preventing these infections. Consumers Union and other patient groups have won enactment of legislation in 30 states to require hospitals to report how often their patients contract a preventable infection. Congress has provided funds for additional infection reporting in the Affordable Care Act (ACA). As a result of all of this effort, infection rates are declining. The Centers for Disease Control and Prevention has found declines of as much as 58 percent for various hospital infections over the last several years.
However, there remain a vast number of safety problems in desperate need of improvement.
Thirteen years ago, the Institute of Medicine estimated that between 44,000 and 98,000 hospital patients die each year from preventable medical errors. That’s roughly the same level of deaths revealed in a recent study by the Inspector General at the Department of Health and Human Services, which pegs the number of Medicare patient deaths from preventable errors at 79,000 each year. In addition to the senseless tragedy of unnecessary death, such errors cost Medicare nearly $2 billion annually, in part because many non-lethally injured patients require additional care to fix the mistakes.
From any point of view, the response to these errors has been wholly inadequate. On the one hand, the research clearly shows that too little is done to identify and prevent them. On the other hand, doctors often provide excessive care to shield themselves in case of a malpractice lawsuit. Although estimates of the cost of this defensive medicine vary considerably due to differences in research methodologies, the potential savings is at least in the tens of billions of dollars.
By ensuring that the effort to reduce medical errors is a fully open and productive enterprise, we can greatly improve patient care and decrease health care costs. To achieve this critical transparency, policy makers and medical professionals should draw from the successful process that hospitals forged in fighting against infections:
- Develop error prevention techniques for medical professionals through hands-on research;
- Set standards for identifying and collecting data on all types of medical errors through regulations; and
- Apply pressure to prevent errors through legal reforms.
The president and Congress should set a national goal to cut medical errors in half by the end of the next presidential term in the following ways:
Develop prevention techniques. One of the early successes in the fight to reduce infection rates came from the Michigan Health & Hospital Association Keystone Center. With the support of federal and state agencies and insurance plans, Michigan hospitals worked with the Johns Hopkins Universitymedical school to develop a simple but effective checklist to prevent infections from central-line catheterization, a process that involves inserting a tube in a patient’s vein. This checklist reduced those infections by two-thirds in Michigan hospitals. Today, according to Consumers Union research, 166 hospitals throughout the nation have completely eliminated this type of infection.
Such techniques may seem obvious in retrospect, but only research can prove how well they work in the first place. Congress needs to continue funding this hands-on research through the Agency for Healthcare Research and Quality so that successful prevention efforts will be recognized and replicated.
Set standards for data collection on errors. The battle against hospital infections has succeeded in part by setting standards for precise definitions of infections that both make sense to clinicians and provide meaningful data for collection and research. Without some degree of uniformity, hospitals and other providers are not able to compare their results against benchmarks or each other.
Putting aside infections, the reporting process for medical errors is underdeveloped. For example, medication and prescribing errors are the leading causes of preventable errors, but current reporting requirements are haphazard at best, failing to clearly identify whether pharmacists or physicians should be responsible for reporting, which federal agency should collect the data, or even how often such mistakes should be reported. The federal government should use its authority under the Affordable Care Act to improve reporting on health care that hurts patients.
Apply the right kind of pressure to prevent errors. Checklists for preventing infections and reporting infection rates have created clear lines of responsibility for prevention among teams of providers. The legal system, however, often muddles responsibility by making individuals accountable instead of recognizing the teamwork needed to avoid injuries. Additionally, malpractice cases do not set precedents that can serve as legal standards for doctors who want to stay within clear legal boundaries of care. Instead, malpractice decisions can appear random and unpredictable to physicians, who consequently learn nothing from them.
The current medical malpractice system undermines an open, collaborative model for preventing errors. Jury decisions offer no reasoning, while settlements are generally sealed at the request of the defendants, which prevents research and discussion about how the injuries could have been prevented. Thousands of tragic mistakes can occur each year because lawsuits have chilled open interaction within hospitals. Doctors and nurses are often trained not to speak up when they suspect something is wrong with someone else’s patient, in order to avoid additional legal responsibility. Malpractice liability plays only a limited and inconsistent role in doing what it should: giving doctors an incentive to practice safely.
To remedy this, Congress should fund, strengthen, and expand the pilot program in the ACA for specialized health courts. Based, in part, on alternative forms of justice like worker’s compensation, a health court would establish automatic awards for clear-cut cases of malpractice. A specialized judge with medical training would hear more complex cases, hire experts to advise the court about medical standards, and make precedent-setting rulings. Caps on damages have a role as well—but not as thinly veiled efforts to limit the already scant access to justice that injured patients have today. A cap of $250,000 is hardly fair to a person who becomes quadriplegic for life from a surgical error. That said, standards for awards based on the severity of an injury can help patients with similar injuries receive similar compensation.
By stopping the legal system from forcing errors underground and investing in research and data collection to prevent errors, we may finally receive health care with a good safety record. And with it we may gain some peace of mind.
David B. Kendall is a Senior Fellow for Health and Fiscal Policy at Third Way. He works on ways to lower health care costs, reduce the federal deficit, reform federal retirement programs, and ensure the success of health care reform.