HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, May 6, 2011

Mixed Messages on Malpractice

In January H.R.5 (Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011), here was introduced in the House. Just hours later this year's State of the Union address, available here, included a somewhat intriguing statement: "I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year -- medical malpractice reform to rein in frivolous lawsuits." Why would the President make such a statement? Was this a Clintonesque attempt to capture the opposition's agenda? Another move to the center? Or a signal that there was a malpractice reform deal to be done this year (after its rejection last year) to save healthcare reform?

The Republican legislation (H.H.5) isn't even that interesting, retooling reforms that have been passed in most states over the last 30 years (combined with a long shot attempt at protecting drug companies) although avoiding even more draconian measures that are still being dreamt up by well-lobbied state legislatures, such as here. Frankly, it's hard to resist cynicism as yet another cycle of posturing and misinformation about malpractice, error and litigation costs gathers momentum. Then, to make things more interesting, the President included $250m in his budget to fund liability demonstration projects in the states; monies not available for caps but available for Health courts, discussed here (and not incidentally opening up a can of worms involving state constitutions that protect trial by jury!).

The malpractice tragedy is that the only reforms that can find traction are these same politically motivated attacks on a legal process that is clearly inefficient and probably inaccurate, but sometimes seems to be all we've got. A couple of recent reports emphasize the aspects of the medical error disaster that we have failed to address.

The first casts further doubt on the medical profession's ability to police itself. The common law implications of institutions failing to disclose adverse results associated with individual physicians were recently discussed here. But what are the downstream results when institutions do take action against physicians with clinical privileges? The answer, provided in the Public Citizen report, State Medical Boards Fail to Discipline Doctors With Hospital Actions Against Them, available here, is all too frequently, not very much! The report analyses 10 years of data in the National Practitioner Data Bank, here. It found that 5,887, or 55%, of physicians who had their clinical privileges revoked or restricted had experienced no state licensing actions. Over 2000 of this cohort had one or more of the most serious violations, such as incompetence or "immediate threat to safety." It is hard to fault Public Citizen's conclusion:

Hospital disciplinary reports are peer review actions that are one of the most important sources of information for medical board oversight. Subsequent state medical board action against a physician’s license provides a greater assurance than a hospital disciplinary action alone that the practitioners medical practice would be monitored or limited and that other state medical boards and future employers will have a more complete account of a practitioner’s practice history…. Our analysis of physicians with clinical privilege reports but no state licensure action raises serious questions about whether state medical boards are responding adequately to hospital disciplinary reports and whether, as required by federal law, state medical boards are receiving such reports.

The second report serves to remind us of the scale of the medical error problem. Jill Van Den Bos and colleagues in an April Health Affairs article, available here (subscription), sought to quantify preventable adverse events. The researchers concluded,

The estimated total cost of measurable medical errors in the United States was $17.1 billion in 2008, which was 0.72 percent of the $2.391 trillion spent on health care that year in the United States.

Another important conclusion was that "ten errors [headed by postoperative infections and pressure ulcers] are accountable for 69 percent of the total medical cost for measurable medical errors."

As Uwe Reinhardt reminded us last year the total cost of the malpractice system (including defensive medicine) is at most $55 billion, or 2.4 percent of healthcare spending, available here. And, malpractice reform would only reduce a fraction of those costs, maybe 0.5 percent of healthcare spending. Until we recognize that the larger medical error number is the one we should concentrate on, progress will be unlikely. 

Reducing healthcare costs by reducing malpractice costs is not only unlikely but also arguably back-to-front. Mark Rothstein, in "Health Care Reform and Medical Malpractice Claims" available here, convincingly makes that reverse case,

one of the leading reasons why individuals bring medical malpractice claims is to ensure the availability of funds for future medical care. Because health care coverage at affordable rates will be accessible in the public or private sector without regard to preexisting conditions, and annual and lifetime caps will be prohibited, significant numbers of injured patients are likely to forego medical malpractice claims. Consequently, even with more patient visits, the total number of medical malpractice claims is unlikely to rise and might even decline.

Calling out our state medical boards, renewing our commitment to patient safety, and striving to reduce malpractice claims through healthcare reform continue to be more positive avenues for reform than encouraging another cycle of malpractice reform.


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