Medical Malpractice

Preventable injuries caused by medical errors are widespread and costly. Estimates vary significantly, with some as high as one million injuries per year, and put medical errors as the third leading cause of death. They result from flaws in the complex interactions among health care professionals, sophisticated technologies, medical and pharmaceutical products, and organizational systems. They also can arise from individual negligence, impairment, and incompetence. A landmark 1999 report (To Err Is Human: Building a Safer Health System) by The Institute of Medicine, known since 2015 as the National Academy of Medicine, focused attention on preventable harm, and attributed most preventable medical injuries to system failures, not to an individual practitioner’s negligence or incompetence.

Preventing medical errors often requires a systems-oriented approach, identifying how and why errors occur and developing and implementing systems to avoid them. To be effective in the long run, approaches to address problems in the current medical malpractice system must reduce preventable medical injuries and offer appropriate compensation for those who are injured despite improved safety efforts.

When preventable medical injuries occur, or are suspected to have occurred, the patient or patient’s estate may take legal action under medical malpractice law. From a patient’s perspective, the most important purposes of the medical malpractice system are to compensate negligently injured patients and deter unsafe health care practices that lead to injury. Medical malpractice law, a subset of tort law is based on a standard of professional negligence—the clinician did not provide the care that would be expected of a clinician in that position. All practicing physicians must have medical malpractice insurance. In addition, patients may file legal cases under other areas of tort liability such as product liability (e.g., for defective drugs or devices) and liability for injury resulting from neglect or abuse, such as in a nursing home or other LTSS setting.

Tort liability is often attacked as a source of problems in America’s health care system. Critics argue that the cost of defending against cases is too high, and the threat of cases causes clinicians to practice what is known as defensive medicine. This is when clinicians practice more cautiously to avoid the risk of malpractice litigation. This often results in the ordering excessive diagnostic tests or treatments that may not be in the patient’s best interest, driving up overall system costs. Meanwhile, medical malpractice premiums make up less than 1 percent of total health care expenditures. The systemic cost of the medical liability system, including defensive medicine, has been estimated at 2-3 percent of total health care spending.

Proposals to reform the medical malpractice system have been proposed and, in some cases, implemented. Perhaps the most controversial is a limit or cap on noneconomic loss (such as for pain and suffering). Research thus far suggests that these caps decrease use of defensive medicine and health care spending but have no effect on quality of care. Damages for noneconomic loss are likely to constitute a larger share of awards to older or retired individuals or people with low incomes. Thus, such caps would exclude a larger portion of their legitimate potential claims and, therefore, would disadvantage these groups the most. Caps of varying levels on nonfinancial damages have been imposed in more than half the states. But several have been struck down as unconstitutional or have been repealed.

One alternative to the legal malpractice case is to use an injury compensation system based on a predetermined awards schedule. Patients and their families would be compensated for avoidable injuries based on the award schedule. As part of this approach, providers would be required to report and analyze medical errors, implement programs to reduce medical injury, and involve patients in safety improvement efforts.

Another non-legal approach has been to encourage providers to openly acknowledge their errors, apologize to patients, and quickly offer compensation. This approach, often called “sorry works,” encourages communication and empathy from providers, and helps patients find answers to what went wrong in their care and learn how the problem has been addressed. The “apology laws” laws have been passed in 39 states (and the District of Columbia) preventing doctor apologies or expressions of remorse from being used against them in court. However, their effectiveness is unclear, at least one review found that these laws increase the risk of medical malpractice liability.