For Malpractice Reform, Focus on Medicine First (Not Law)

The following originally appeared on The Upshot (copyright 2017, The New York Times Company).

Congressional Republicans have recently revived efforts to overhaul malpractice laws, including capping certain kinds of suits at $250,000. A perennial argument of supporters of such measures is that many claims are frivolous, clogging the court system and driving up health care costs for everyone. But does the evidence support this?

You don’t have to look too hard to find backing for the notion that some malpractice claims lack merit. A 2006 New England Journal of Medicine study reviewed a random sample of 1,452 claims from five malpractice insurers. Its authors found that 37 percent of these cases involved no errors, and 3 percent involved no verifiable injuries.

It’s also undeniable that defending against malpractice suits gets costly. Other research shows that providers and hospitals spent $81,000 to $107,000 (in 2008 dollars) to defend cases that went to verdict, on average. Even defending claims that were dropped, withdrawn or dismissed cost $15,000 per claim.

But it is not so clear that the best way to solve malpractice lawsuits is through changes focused on the legal system rather than the medical one.

The same 2006 N.E.J.M. study also found that, in many ways, the malpractice system works reasonably well. Most claims without errors or injuries didn’t result in payments, and most claims with errors did.

A study published last month in the American Journal of Health Economics explored the link between malpractice suits and metrics known as Patient Safety Indicators (P.S.I.). These indicators, developed and released by the Agency for Healthcare Research and Quality in 2003, are intended to quantify harmful events in the health care system. These events are thought to be preventable by changes at the level of the physician, the hospital or the system itself.

The study’s researchers combined a number of data sets from Florida and Texas to see how the rates of 17 indicators were related to malpractice claims for hospitals. Their hypothesis was straightforward: Patient Safety Indicators are a reasonable measure of safety; poor safety makes medical errors more likely; and medical errors lead to malpractice claims.

It turns out that hospitals differed quite broadly in P.S.I. rates. In Florida, among the larger hospitals, adverse events ranged from 55 to 390 per 10,000 discharges. The researchers also found a strong correlation between P.S.I. rates and the rates of malpractice claims.

Bernard Black, one of the authors of the study and a professor at Northwestern’s school of law, said that even small changes in patient safety helped a lot: “Moving a hospital from roughly the 33rd percentile (worse than two-thirds of other hospitals) to the 67th percentile (better than two-thirds of other hospitals) reduces the rate of lawsuits by 16 percent. This level of improvement should be achievable.”

This research is not the last word on this subject, of course. Patient Safety Indicators, while widely accepted as measures of safety and quality, are imperfect. This study includes only two states, with hospital-level data available only in Florida. The study wasn’t a randomized controlled trial, and causality isn’t assured.

Causation is likely, though, because reverse causality doesn’t make much sense — it’s hard to see how higher malpractice rates would lead hospitals to pay less attention to safety.

The study points to a significant link between measures of quality and safety and malpractice claims, suggesting that taking steps to improve patient safety should reduce the risk of lawsuits. Such measures would also probably improve outcomes for patients — a good in itself.

Too often, efforts to fight undeniable problems in the malpractice system start from the assumption that there are too many cases, that they’re not “real,” and that we need to come up with solutions to limit them. But what the data suggest is that improving medical practices may be a more effective approach than passing new laws.


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