Malpractice and Medicine: Who Gets Sued and Why?

Carol Peckham


December 08, 2015

In This Article

How Can This Dysfunctional System Be Fixed?

Respondents were able to choose multiple options for best ways to discourage lawsuits. The great majority (81%) believed that malpractice cases should be screened for merit by a medical panel before they can proceed. About half (48%) thought that one approach would be trying cases before a "health court." Nearly two thirds (62%) believe in caps on noneconomic damages, and 37% want to ban lawyers from taking cases on contingency. Among verbal suggestions, unsurprisingly, many urged tort reform, but by far the most popular suggestion, particularly among male respondents, was to make the losing side pay. More women than men mentioned improved communication with patients as a way to discourage lawsuits.

Federal Initiatives

In 2010, the US Department of Health and Human Services issued $25 million in grants to test seven approaches for reforming the current liability system[1,9]:

  • Communication and resolution programs;

  • Mandatory presuit notification;

  • Apology laws;

  • State-facilitated dispute resolution;

  • Safe harbors;

  • Judge-directed negotiation; and

  • Administrative compensation systems.

A few of these are discussed below.

Safe harbors. Safe harbor programs would establish protection for physicians who use guidelines for making decisions.[10] An Oregon analysis found that in claims where guidelines were applicable, injury might have been avoided in 30% of claims, and 32% would have been resolved more quickly had safe harbor been applied.[11] Unfortunately, there are many limitations to the safe harbor approach, including the fact that guidelines target only a fraction of all claims and that specific patient cases are not always covered by guidelines.[12,13] The Choosing Wisely campaign provides a precedent for the fair and unbiased compilation of guidelines. Nearly every major medical society has participated in this initiative and has constructed recommendations against common practices that lead to overtesting or overtreatment.[14] Furthermore, Consumer Reports has released these guidelines to consumers, encouraging patients to question these practices when talking to their physicians. According to a national ABIM survey, 73% of physicians say that this is a very or somewhat serious problem.[15] Nevertheless, over a third (37%) of respondents to the Medscape survey believe the Choosing Wisely initiative will lead to more lawsuits. Less than a quarter (24%) explicitly believe it will not. The rest are unsure.

Apology laws. Although programs employing apologies are being tested, when asked if saying "I'm sorry" would have helped, the answer was a resounding "No" (81%). Seventeen percent admitted to not knowing, and a miniscule 3% were certain it would help. Of interest, there were no significant differences in sex among those who responded. Among the verbal comments to this question, most physicians reported that they didn't say they were sorry because it wasn't their fault, that it would have made no difference, or that they were among many others named and hadn't even met the plaintiff. More than a few said that greed was the motivating factor. Those who reported that they had expressed sorrow said that it would not have made a difference.

Judge-directed negotiation. In 2002, Douglas E. McKeon, a New York judge, collaborated with New York City Health and Hospitals Corp, the largest municipal healthcare organization in the country, to set up a process that focuses on early judge-directed discussions with the attorneys on the medical merits of their cases. Physicians and plaintiffs can be involved as well. It doesn't necessarily preclude trials, but this approach is proving to cut legal fees and shorten many cases. In one of these programs set up in the Bronx, cases were completed at an average of 9 months compared with the usual 3 years. Physicians without direct responsibility in the case are weeded out within 6 months. This program requires no changes in the law, although it would require funding and training in order to scale it. Additional programs are currently underway.

Tort Reform

Most medical organizations and physicians support tort reform, and some states have instituted measures to reduce lawsuits with this approach, although a 2010 study concluded that even in states where such reforms have reduced cases, physicians still remained concerned about the threat of malpractice and used defensive medicine.[16]

Employing caps. According to some research, placing caps is the most cost-effective approach in malpractice reform, both in reducing awards and slowing the rise in premiums.[17] Critics argue, however, that they place a greater burden on the poor. Nine states have found caps to be unconstitutional.[18] Texas placed a cap of $250,000 on noneconomic damages, which led to a significant drop in lawsuits and settlements. It is not clear yet whether such caps reduce defensive testing or hospital admission rates.[9]

Ending malpractice litigation. Georgia has introduced legislation that would end malpractice litigation.[19,20] A patient advocate would make an appeal to investigate the injury, and a panel of relevant medical experts would review the full record. If the panel concluded that the injury was avoidable, the case would be referred to a compensation committee. The patient wouldn't need a lawyer, and the physicians wouldn't need malpractice insurance. They would, however, pay an annual contribution to administer the program. Critics of this approach claim that the result would actually increase costs for the system and for physicians because more patients would be compensated than under the current system.


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