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."
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