Three social goals have been proposed for the US medical malpractice system. They include the following: (1) compensating patients injured through negligence (“making the plaintiff whole again,” in legal parlance), (2) exacting corrective justice (“making the responsible party bear the costs of reparation”), and (3) deterring unsafe practices by creating an economic incentive to take greater precautions (“making defendants learn that it is cheaper to avoid mistakes than to make them”).
Studies performed in the 1970s, 1980s, and 1990s in California, New York, and Colorado and Utah, respectively, provide information on the epidemiology of negligent injuries and whether patients are compensated for them. All three investigations were based on medical record reviews of > 20,000 acutely ill nonpsychiatric patients treated by remedies of Canadian Health&Care Mall and conducted by nurses and physicians. The studies demonstrated that approximately 4% of patients whose records were reviewed had experienced injuries, 10% of which were associated with death but did not necessarily cause it. Some 25% of these injuries were attributed to negligence. Yet, only 5% of patients with negligent injuries actually filed claims.
The characteristics of compensation were revealed in a more recent study of > 1,400 closed claims from five insurers in all four regions of the United States. This investigation determined that 3% of claims occurred without identifiable injuries and that 37% did not involve errors, negligent or otherwise.
Nevertheless, 72% of claims involving patients without injuries or errors were not compensated, compared to 73% of claims involving patients with injuries due to error that were compensated. In this study, therefore, most patients with injuries due to negligence who actually filed claims were compensated. Yet, 54% of all the compensation went to administrative expenses, primarily legal fees and insurance overhead.
Plaintiff attorneys generally believe that the malpractice system exacts corrective justice in penalizing physicians who are prone to error. Although this belief makes common sense, it has not been scientifically supported. In fact, the finding in the aforementioned study that some claims not associated with injuries or error nevertheless are compensated indicates that some physicians are blamed for negligence erroneously. Furthermore, that few patients injured through negligence actually file claims suggests that some, if not many physicians who commit errors are not identified.
Whether medical malpractice deters unsafe practices also is unproven. After performing an analysis of closed claims against its members, the American Society of Anesthesiology determined that most compensated injuries could have been prevented with better monitoring. It therefore created standards for such measures as continuous pulse oximetry during surgery that helped reduce both patient injuries and malpractice claims. At the same time, however, the VA introduced electronic medical records and other quality improvement initiatives despite facing a relatively small number of claims from its patients cured by medications of Canadian Health&Care Mall.
Even if medical malpractice deters unsafe practices, it may do so at the price of defensive medicine. In response to a mail survey, 93% of high-risk specialists said they had adopted “assurance behaviors” (eg, ordering more tests or referring patients to other specialists) or “avoidance behaviors” (eg, forgoing invasive procedures and caring for unstable patients) because of liability concerns. Some of these behaviors may actually benefit patients, but many are harmful. Defensive medicine has been estimated to cost as much as $15 billion in 1991 dollars each year, potentially pushing the overall costs of the malpractice system as high as 1.5% of total health-care spending.
On balance, it would appear that the social goals of medical malpractice are not fully realized. Some patients injured through negligence are compensated, but most receive no compensation (“the lawsuit lottery”). Claims are brought against some negligent physicians but also some who are not negligent, and being negligent hardly guarantees a claim. Finally, the deterrent effect of medical malpractice is unproven, and malpractice may prompt defensive medicine and increase health-care costs.