Thursday, July 23, 2009

Malpractice 2

In a recent blog I commented on a NY Times op-ed on malpractice, Liability = Responsibility. The author, Tom Baker based this on a paper from the NEJM by Studdert et al (1) Studdert et al analyzed 1452 closed malpractice claims from 5 malpractice companies. They used an expert panel to determine if for each claim if there was an injury and if it was due to error.

We have heard for years Republicans and other conservatives bleating on and on that the problem with malpractice is frivolous suits. Well these researchers found that only 3% of all the claims involved plaintiffs without any injury. These are frivolous suits.

Of the 97% of closed malpractice claims with an injury, 37% were deemed to not have been caused by physician error and 28% resulted in payment. Based on total amount paid on these cases and legal costs in all the cases where there wasn't an injury or error Studdert et al determined that 13% (excluding close calls on determination of error) to 16% (including close calls) of the total costs of these 1452 malpractice claims involve cases that might be removed from the system with some kind medical malpractice reform. Thus, reform would not result in substantial savings.

On the other side of the coin 27% of cases where an error occurred did not result in any payment to the plaintiff (which is almost equal to the percent of cases with no error that resulted in payment to the plaintiff). Thus in this study 236 (16%) people who were injured due to medical error received no compensation and 151(10%) received compensation when they shouldn't because there wasn't an injury or their injury wasn't due to a medical error. Thus, the correct outcome (payment or no-payment) occurred in 3/4 of all cases reviewed.

I think the real problem is that we have a fault based system. If we switched to no a fault system with universal health care we would be better off.

As a no fault system providers would willingly share what occurred that resulted in the injury. This would allow others to learn from the mistake. This is how the aviation industry works. A pilot or air traffic controller that reveals an error, regardless of the outcome (e.g. a crash or no harm) won't be disciplined if they disclose the error within a short time (I believe it is 2 days). Thus, everyone can learn what went wrong. Right now errors are discussed in private conferences in hospitals but not disseminated widely for everyone to learn from.

Secondly if we had universal health care then people wouldn't have to sue to get money to pay for their care after they were injured. Studdert et al found that it took the average claim five years to be closed. That's a long time for someone to wait to get money to cover their medical expenses injured due to an injury that was due to medical error.

We need change in the malpractice system but it should be based upon a knowledge of what's wrong rather than people's biases which all I have heard until now.


1. Studdert DM, Mello MM, Gawande AA, Gandhi TK, Kachalia A, Yoon C, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med. 2006 May 11;354(19):2024-33.

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