Maggie Mahar has a great post on movements in medical malpractice, and the beginnings of a change from the traditional "deny and defend" strategy towards disclosure and, yes, apologies. The problem is, a more open approach to medical malpractice suits might mean more of them get filed. The medical malpractice problem is not, as some would have you believe, solely in the courts. It's on the operating tables. Take this study from the Harvard School of Public Health (as Maggie notes, "this is not a cabal representing lawyers who should be sitting on the bottom of the ocean. These researchers are interested in our health as a nation."), which found:
• “The great majority of patients who sustain a medical injury as a result of negligence do not sue.” Indeed, the New York Times reports, although “recent studies have found that one of every 100 hospital patients suffers negligent treatment, and that as many as 98,000 die each year as a result . . . only a small fraction of injured patients — perhaps 2 percent—press legal claims.)
• “Just 1.1 percent of all doctors accounted for 30 percent of all malpractice payments made between 1990 and 2002, while only 5.2 percent of doctors were responsible for 55 percent of all payouts.” A very small group of doctors are losing or settling malpractice lawsuits, but they are losing big.
• “Eighty percent of claims involved injuries that caused significant or major disability (39 percent and 15 percent, respectively) or death (26 percent).”
The problem isn't malpractice lawsuits, but the mistakes that lead to them. I'm sympathetic to doctors who don't want to be punished for human error, but I'm also sympathetic to patients who've been grievously injured because they trusted doctors to avoid major errors. In our system, such trust is all too frequently grievously misplaced. But trying to deal with this on the legal end, either by toughening the circumstances under which patients can sue or simply increasing disclosure and easing the path to restitution, is getting it exactly backwards. The suits aren't the problem, the mistakes are the problem.
Surgical checklists, health information technology systems, better nurse staffing ratios, better sanitation, and a hose of other initiatives could be deployed to cut down on medical errors. As I've written in the past, various systems have pursued quality control programs and seen errors and suits drop precipitously. A national strategy to fund such programs more widely would be a wise response. But thinking about these lawsuits is perverse. In 99 percent of the cases, there's a medical tragedy at the center of the suit, and that, not the legal process it engenders, is what we need to attack.
Related: My Slate article on The Medical Malpractice Myth.
