A New York Times oped article today urges that medical malpractice litigation is serving a positive role in efforts to reduce the unfortunately vast amount of medical malpractice that occurs annually. Happily, the oped is backed up by a research paper and so it’s not just opinion.
The author, Joanna C. Schwartz, is a UCLA law professor with no apparent ties to any of the usually advocating constituencies (plaintiff’s lawyers, hospitals, doctors or insurers.) It appears instead she is interested in litigation and its impacts. Thus, Professor Schwartz’ bio includes federal clerkships, pro bono work, overseeing clinical trial work by students and an article on the role of lawsuits in decision making by law enforcement officials: Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA Law Review 1023 (2010).
Professor Schwartz’ oped, titled Learning from Litigation – includes the following observations:
"What accounts for these changes? Several factors appear to have overcome historical resistance to transparency, including widespread laws requiring disclosure to patients and confidentiality protections for internal discussions of error. Hospitals have also found that disclosing errors to patients and offering early settlements reduces the costs and frequency of litigation.
My study also shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error. Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts. And risk managers and patient-safety personnel overwhelmingly report that lawsuit data have proved useful in efforts to identify and address error.
One might think that hospitals would have little to learn from lawsuits, given other requirements that hospitals report, investigate and analyze medical error. But participants in my study said that lawsuits can reveal previously unknown incidents of medical errors — particularly diagnostic and treatment errors with delayed manifestations that other reporting systems are not designed to collect."
The full article is on SSRN at this page, and also is reviewed and summarized at Jotwell Health Law. The article abstract provides more specifics:
Abstract:
Every year, medical error kills and injures hundreds of thousands of people and costs billions of dollars in lost income, lost household production, disa-bility, and health care expenses. Conventional wisdom is that malpractice litigation does little to improve patient safety and, in fact, harms the cause. Lawsuits are believed to offer little useful information about medical error. And the fear of malpractice liability is believed to inhibit the kind of open-ness and transparency needed to identify and address the root causes of medical error. Critics of the conventional wisdom contend, in contrast, that malpractice litigation brings crucial information about medical error to the surface, and creates financial, political, and institutional pressures to im-prove. Yet both proponents and critics of the conventional wisdom offer scant evidence in support of their claims.
This Article sheds much needed light on this hotly contested debate by ex-amining the role that medical malpractice lawsuits actually play in hospital patient safety efforts. I conducted a national survey of health care profes-sionals and thirty-five in-depth interviews of those responsible for managing risk and improving patient safety in hospitals across the country. Drawing on this research, I find reason to believe that malpractice litigation is not significantly compromising the patient safety movement’s call for transpar-ency. In fact, the opposite appears to be occurring: the openness promoted by patient safety advocates is transforming hospitals’ relationship to law-suits and risk. Hospitals, once afraid of disclosing and discussing error for fear of liability, increasingly encourage transparency with patients and medical staff. Moreover, lawsuits are playing a productive role in hospital patient safety efforts – as a source of valuable data about weaknesses in hospital policy, practices, staff, and administration. These observations should inform open and pressing questions about medical malpractice re-form and the best ways to improve patient safety."
Judging by the abstract and the oped (I’ve not read the full article), the research findings appear to jibe with prior research on medical malpractice myths – as opposed to war stories. The research shows that medical malpractice suits are best avoided by acknowledging errors, apologizing, and paying compensation in appropriate cases.