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Some Thoughts on Malpractice

Shadowfax gets me wrong here. I don't hate doctors, or blame them for operating room errors. But I've read a substantial number of studies where doctors and nurses did blind evaluations of malpractice suits and overwhelmingly found them meritorious. Totally overwhelmingly. For instance:

The most impressive and comprehensive study is by the Harvard Medical Practice released in 1990. The Harvard researchers took a huge sample of 31,000 medical records, dating from the mid-1980s, and had them evaluated by practicing doctors and nurses, the professionals most likely to be sympathetic to the demands of the doctor's office and operating room. The records went through multiple rounds of evaluation, and a finding of negligence was made only if two doctors, working independently, separately reached that conclusion. Even with this conservative methodology, the study found that doctors were injuring one out of every 25 patients —and that only 4 percent of these injured patients sued.

I've also seen a bunch of case studies where professions or institutions undertook huge efforts to standardize practices and cut errors and create a new resolution system and it worked. Accidents went down, and so did malpractice.

Anesthesiologists used to get hit with the most malpractice lawsuits and some of the highest insurance premiums. Then in the late 1980s, the American Society of Anesthesiologists launched a project to analyze every claim ever brought against its members and develop new ways to reduce medical error. By 2002, the specialty had one of the highest safety ratings in the profession, and its average insurance premium plummeted to its 1985 level, bucking nationwide trends. Similarly, feeling embattled by a high rate of malpractice claims, the University of Michigan Medical System in 2002 analyzed all adverse claims and used the data to restructure procedures to guard against error. Since instituting the program, the number of suits has dropped by half, and the university's annual spending on malpractice litigation is down two-thirds. And at the Lexington, Ky., Veterans Affairs Medical Center, a program of early disclosure and settlement of malpractice claims lowered average settlement costs to $15,000, compared with $83,000 for other VA hospitals.

That strikes me as the right direction here -- simply capping damages for someone who has been terribly harmed, and might now be disabled, doesn't.

In some ways, this debate is poorly served by the term "malpractice." The question isn't what doctors are doing wrong. It's what's going wrong. There might be some frivolous lawsuits, and some doctors hit with unfair payments, and there's certainly too much fear of such things in the system, and I'm happy to protect doctors from being liable for mistakes that aren't their fault. But that should be a subpoint in a larger discussion about instituting standards and controls that cut down on the accidents themselves.

All that said, I doubt reform will change "defensive medicine" very much, for the exact reasons Shadowfax -- an ER doctor -- outlines here. The idea that overtreatment is "defensive medicine" has always struck me as a terrible slur against the humanity of doctors: Presumably, much "to-be-safe" medicine stems from not wanting your patient to die. As Shadowfax writes, being sued is "a fear, and a significant one. But it's possibly the least likely of all the bad things that happen when you are wrong."

For more on the various malpractice fixes that are on the table, see this excellent overview from Philip Howard. And as long as I'm recommending things, people should read Shadowfax's blog.

By Ezra Klein  |  September 25, 2009; 5:30 PM ET
Categories:  Health Reform  
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Why do you guys always ignore the 2nd half o the 1990 Harvard Study?

the 2nd half of the Harvard Study looks at the malpractice suits actually filed, and concludes that most of them dont have any evidence of malpractice.

In other words, both sides are getting screwed here. Patients arent suing for most instances of malpractice, and most malpractice suits dont have any evidence of wrong-doing. The only winners here are the lawyers. They get paid regardless of what happens.

Posted by: platon201 | September 25, 2009 7:56 PM | Report abuse


The problem with your views on malpractice reform is that they skirt some very obvious points:

1) Are torts an efficient, equitable process for compensating people for wrongful medical injuries, particularly compared to worker's comp? No.

2) Are torts an effective mechanism for forcing the health care industry to improve its practices? No.

By definition, the purpose of torts is to provide #1 and #2. They don't work in health care, and there is little no evidence to contradict this point. Malpractice lawyers are a cancer on the system, a hidden tax on our health care expenditures, and a hindrance towards more helpful mechanisms for improve medical errors.

I've never seen you say anything of the like, when the available data on this is pretty clear. Instead, you make a wrong-headed statement that the problem is in the operating room not the court room. There's more to be done, for sure, but the medical profession has actually taken steps to improve medical care. The same isn't true for the lawyers. They are the problem, and they have bought off a whole party of our political system, preventing an honest assessment on the value of torts in medicine. That position they've bought is pretty powerful, it even prevents partisan, yet honest analysts such as yourself from saying the simple truth that torts are not helpful in medicine. For all of the posts you've done on health care in France, the fact you've NEVER mentioned that they don't have torts, but rather a system like workers comp is pretty amazing.

I think that is where Shadowfax has it exactly right.

Posted by: wisewon | September 25, 2009 8:31 PM | Report abuse

I am not a lawyer. I don't even know any tort lawyers. The people here only talk about the few winners among the tort lawyers, never about the ones who lose a case and are then out all the money they put out up front to try the case.

Read "A Civil Acion" by Jonathan Harr or see the movie.

Posted by: lensch | September 25, 2009 9:19 PM | Report abuse

I usually agree with wisewon, but s/he must be a doc. Our medical malpractice system is pretty fair. If I had one gripe, I'd say the focus on economic damages tends to under-compensate most patients and over-compensate the Michael Jacksons and John Ritters of this world.

Replacing malpractice with a no-fault system like Workman's comp (where up to 90% of the claims are frivolous) makes no sense to me. But the idea is gaining momentum because when docs talk about malpractice these days it's just a code-word for "physician discipline."

You see, a doctor can lose millions in a malpractice suit and he's still in business (that's what insurance is for)--but if the Medical Board sanctions him for substandard care or too many lawsuits, that can be a career-ender. And prodded by the public, Boards are becoming increasingly willing to do just that.

So instead of fixing something that isn't broken (the malpractice system) let's focus on the broader concern which is how to restructure physician discipline in general so it works better for patients and providers.

Posted by: bmull | September 25, 2009 11:36 PM | Report abuse


I am a doc. But... my views aren't the traditional doc views...

-- The fairness point is not about the damages given to those patients that actually sue, but that the hassles of the malpractice system has severely limited the number of patients that pursue claims. A more streamlined system would encourage all patients to seek fair compensation. It would also not seek to distinguish between malpractice vs. rare, debilitating side effects of appropriate care-- from a patient/societal perspective we should want both patients to be made whole.

-- I very much agree that those in the medical field that push for "no fault" worker's comp tend to end their reform suggestions at that point and don't take any responsibility on the doc side. This is where I diverge. I think the discplinary/review system, which should be separate from the above compensation system, needs to be completely revamped. State medical societies have been absolutely terrible, and we need to institute a robust, federalized, independent regulator that can appropriately punish/remove the 5% of doctors responsible for most malpractice claims today.

But if you look at the data, you'd be hard pressed to provide any data that today's system helps all patients that are victims, nor does a good job in discouraging bad behavior.

Posted by: wisewon | September 26, 2009 6:54 AM | Report abuse

i think very simply we need to get to a point where we understand that no doctor "intentionally" harms someone. I would favor a workers comp structure that is fair to both sides. I think it would help to curb the abuses of the system and then the med-mal insurance carriers should be forced to reduce rates to "workers comp" levels which would save billions.

no one should be harmed by malpractice but when you are you should get your appropriate care that you need plus pain and suffering and it shouldn't be before a jury who can be swayed by emotion. And how about a law managing the percentage that lawyers make in those cases? Oh wait, lawyers make the laws. that's like asking for campaign finance reform. And lensch while i agree about "a civil action" if all lawyers (even a majority) were like that case then we wouldn't have as many lawyers as we do.

Posted by: visionbrkr | September 26, 2009 7:10 AM | Report abuse

Well, visionbrkr, how many tort lawyers do we have? Look, the point is that many people who are injured not only by incompetent physicians, but also by irresponsible corporations cannot get redress for their injuries because lawyers are afraid to take any case that does have a very high probability of success because they have to put so much money up front.

We need tort reform, but in just the opposite direction that people here propose. We need to help people who have been injured by rich and powerful interests with stables of attorneys to be able to get into court. Physicians and corporations in general have shown over and over that they cannot be trusted to police themselves.

I don't know the answer. Perhaps have the court assign lawyers to both sides who will be paid by the court which will also assume court costs.

Posted by: lensch | September 26, 2009 8:57 AM | Report abuse

Good points, Ezra, but I want to second what Platon said - the problem cuts both ways. There are a lot of injured people who never sue, but also a lot of frivolous lawsuits.

Posted by: Sophomore | September 26, 2009 9:56 AM | Report abuse


why not take it out of the lawyers hands and appoint boards that are appointed to determine these things. I don't profess to know who would qualify but as you've agreed to the current process doesn't help.

Posted by: visionbrkr | September 26, 2009 4:02 PM | Report abuse

Why take it out of lawyer's hands? The court system we have, imperfect as it is, seems to work as well as any other system. I know plenty of honest hard-working lawyers and judges as well as a few of the other kind Is there any reason to think arbitrary arbitration panels would work any better?

We've spent hundreds of year since that rainy day in that muddy field at Runnymede in 1215 to get our legal system. I would not throw it away to satisfy rich and powerful corporations and insurance companies.

Posted by: lensch | September 26, 2009 7:30 PM | Report abuse

Obviously, malpractice litigation and hig premiums don't solve the problem. Otherwise, the problem would be fixed.

The question is, why don't the providers get their act together to limit malpractice or just because they can?

Posted by: lfstevens | September 26, 2009 9:43 PM | Report abuse


its not as if they're trying to make mistakes. They're human. That's what people don't get. Also patients shouldn't second guess them and run back to WebMD to get what they think is an answer.


you're not serious are you? When did lawyers become the good and the righteous? Did I miss something? Isn't it the lawyers that make the laws that those on the left complain about all the time? Isn't it the lawyers that advise all private corporations (including insurance companies) how to circumvent the laws THAT THEY HELPED WRITE??

I know a lot of good lawyers too but don't make them out to be the Little Sisters of Help to the Poor. They're more like the Little Sisters of the Malfeasant.

Posted by: visionbrkr | September 26, 2009 11:33 PM | Report abuse

"We've spent hundreds of year since that rainy day in that muddy field at Runnymede in 1215 to get our legal system. I would not throw it away to satisfy rich and powerful corporations and insurance companies."

and i'm not suggesting junking the entire legal system. Just fixing the small piece of it that deals with medical malpractice litigation.

Posted by: visionbrkr | September 26, 2009 11:35 PM | Report abuse

We need to figure out how to get fewer medical errors. Torts don't get it done. What will?

Posted by: lfstevens | September 27, 2009 2:35 AM | Report abuse

""We need to figure out how to get fewer medical errors. Torts don't get it done. What will?""

This was the point that was trying to be made about enforcing standardization and standard practices (eg, checklists). From what I have seen, doctors are stubbornly protective of their independence and will chafe under the idea that they adopt some "standard" industry practice, as if this is some kind of affront to their own best judgment.

Posted by: tyromania | September 28, 2009 8:31 AM | Report abuse

I posit that 2/3 of the effort to gain a solution is to begin working on the problem. With all the various opinions which are evidenced even by these comments, a meaningful improvement was gained by anesthesiologists when they simply tackled the problem out of self interest. They're involved in every serious operation, hence more exposed than other disciplines and with the state of malpractice reform, they decided to make an improvement or continue suffering inordinately.

Posted by: BertEisenstein | September 28, 2009 9:54 AM | Report abuse


very good point about the anesthesiologists and I know I saw a recent post by Ezra on it. That being said anesthesiologists rates haven't come down (from what I've seen). It's nice that they seem to be able to pocket the monies their efficency brought about.

Posted by: visionbrkr | September 28, 2009 11:32 AM | Report abuse

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