Tuesday, August 7, 2012
Joanna Schwartz has just posted the above-titled article on SSRN.
Every year, medical error kills and injures hundreds of
thousands of people and costs billions of dollars in lost income, lost
household production, disability, 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. But the deeper problem, critics contend, is that the fear
of malpractice liability inhibits the kind of openness and transparency needed
to identify and address the root causes of medical error.
This Article tests the conventional wisdom by examining the
role that medical malpractice lawsuits actually play in hospital patient safety
efforts. I conducted a national survey of health care professionals 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 transparency.
In fact, the opposite appears to be occurring: the openness promoted by patient
safety advocates is transforming hospitals’ relationship to lawsuits 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 previously unconsidered role in hospital
patient safety efforts – as a source of valuable data about weaknesses in
hospital policy, practices, staff, and administration. These new and
counterintuitive observations should inform open and pressing questions about
medical malpractice reform and the best ways to improve patient safety.