Malpractice litigation helps reduce medical error


by David Safier

The NY Times has a good op ed by UCLA law prof Joanna C. Schwartz on the value of malpractice litigation in reducing medical errors. Contrary to the notion that malpractice suits result in people hiding problems, she says it encourages improved practices.

New evidence, however, contradicts the conventional wisdom that malpractice litigation compromises the patient safety movement’s call for transparency. In fact, the opposite appears to be occurring: the openness and transparency promoted by patient safety advocates appear to be influencing hospitals’ responses to litigation risk.


[W]hile hospitals historically took an adversarial and secretive approach to lawsuits and error, that has begun to change. In recent years, hospitals have become increasingly open with patients: over 80 percent of hospitals in my study have a policy of apologizing to patients when errors occur. And hospitals are more willing to discuss and learn from errors with hospital staff.

What accounts for these changes? Several factors appear to have overcome historical resistance to transparency, including widespread laws requiring disclosure to patients and confidentiality protections for internal discussions of error. Hospitals have also found that disclosing errors to patients and offering early settlements reduces the costs and frequency of litigation.

My study also shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error. Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts. And risk managers and patient-safety personnel overwhelmingly report that lawsuit data have proved useful in efforts to identify and address error.

My knowledge on this issue is minimal. When I have questions, my usual go-to guy is Barry Kirschner, a friend and local lawyer. He sent me an email expanding on the op ed.

One of many reasons people have an incentive to drive more carefully is the cost of insurance and the threat of accountability should they be responsible for an accident. There is less irresponsible drinking and driving and risky conduct because of this civil liability.

Doctors have many pressures on them on and off the job. The surgeon who is on call and not supposed to have a drink because of the possibility of working, has extra incentive to do the right thing because of the possibility of civil litigation. It also applies to the surgeon who is on his or her feet for 8-10 hours a day and cannot maintain the type of focus a patient should have when the patients' eyes or spine are at issue. Civil litigation as a possibility also affects the Radiologist, influencing the MD to be that much more certain that all nuances of the image are considered properly and with sufficient time and energy.

I have had no personal involvement in a malpractice case for over 10 years. My very limited experience suggests that the bias against patients who bring suits against doctors overwhelms the fairness of the system.  There are many problems with how things are done. The right wing has long had as a goal the elimination of malpractice suits.  This has the two fold advantage to them of currying favor with insurance companies and doctors, and dealing a financial blow to trial lawyers, generally funders of more progressive causes. But the consumer/patient will suffer with worse outcomes, including quite a few which are catastrophic, if the providers have less concern about civil liability.