Saturday, August 8, 2009
Michelle Mello (Harvard--Health Policy & Management) & David Studdert (University of Melbourne--Law & Medicine) have posted the abstract to their latest article, Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries, on SSRN. The abstract:
Like most branches of tort law, medical malpractice is largely premised on the notions that injuries arise from individual carelessness or lack of expertise, that culpable actors can be readily identified, and that their negligence can be deterred by setting damages sufficiently high to induce medical professionals to take due care. The emerging science of patient safety takes a very different view of the occurrence and prevention of medical injury in favor of a “systems” view of accident causation. In this Article, we examine new evidence about the nature of the relationship between individual and systems factors in the production of medical injury relationship and consider its salience for tort doctrine’s conventional view of injury causation. The data come from an empirical study of 1,452 closed malpractice claims. Three key findings have implications for tort doctrine. First, the causality of medical injuries is multifactorial and weblike. This challenges the traditional tort-law notion of the causal chain. Second, in analyzing the complex causality typically associated with medical injury, it is difficult to cleanly separate individuals and their failures from the larger environments or systems in which they work. This raises questions about medical malpractice doctrine’s heavy focus on individual liability. Finally, the pattern of etiologic factors identified suggests that the most promising opportunities for injury prevention lie at the organizational level. Yet tort incentives currently run to individuals, not organizations. We conclude with some suggestions for realigning tort doctrine to better reflect the realities of medical-injury causation.
COPIES OF THE ARTICLE CAN BE OBTAINED BY EMAILING [email protected].