Study shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error
Published: May 16, 2013
LOS ANGELES — MUCH of the discussion over the
Affordable Care Act has focused on whether it will bring down health care costs.
Less attention has been paid to another goal of the act: improving patient
safety. Each year tens of thousands of people die, and hundreds of thousands
more are injured, as a result of medical error.
Experts agree that the best way to reduce medical
error is to gather and analyze information about past errors with an eye toward
improving future care. But many believe that a major barrier to doing so is the
medical malpractice tort system: the threat of being sued is believed to prevent
the kind of transparency necessary to identify and learn from errors when they
occur.
New evidence, however, contradicts the conventional
wisdom that malpractice litigation compromises the patient safety movement’s
call for transparency. In fact, the opposite appears to be occurring: the
openness and transparency promoted by patient safety advocates appear to be
influencing hospitals’ responses to litigation risk.
I
recently surveyed more than 400 people responsible for hospital risk
management, claims management and quality improvement in health care centers
around the country, in cooperation with the American Society of Health Care Risk
Managers, and I interviewed dozens more.
My interviewees confirmed that while hospitals
historically took an adversarial and secretive approach to lawsuits and error,
that has begun to change. In recent years, hospitals have become increasingly
open with patients: over 80 percent of hospitals in my study have a policy of
apologizing to patients when errors occur. And hospitals are more willing to
discuss and learn from errors with hospital staff.
What accounts for these changes? Several factors
appear to have overcome historical resistance to transparency, including
widespread laws requiring disclosure to patients and confidentiality protections
for internal discussions of error. Hospitals have also found that disclosing
errors to patients and offering early settlements reduces the costs and
frequency of litigation.
My study also shows that malpractice suits are playing
an unexpected role in patient safety efforts, as a source of valuable
information about medical error. Over 95 percent of the hospitals in my study
integrate information from lawsuits into patient safety efforts. And risk
managers and patient-safety personnel overwhelmingly report that lawsuit data
have proved useful in efforts to identify and address error.
One might think that hospitals would have little to
learn from lawsuits, given other requirements that hospitals report, investigate
and analyze medical error. But participants in my study said that lawsuits can
reveal previously unknown incidents of medical errors — particularly diagnostic
and treatment errors with delayed manifestations that other reporting systems
are not designed to collect.
Lawsuits can also reveal errors that should have been
reported but were not — medical providers notoriously underreport errors
(although studies have shown that the threat of litigation is not responsible
for this underreporting) and lawsuits may fill these gaps.
Moreover, litigation discovery can unearth useful
details about safety and quality concerns. Analyses of claim trends can reveal
problematic procedures and departments, and closed litigation files can serve as
rich teaching tools.
True, malpractice litigation data also have many
flaws: too few malpractice claims are filed to reflect an accurate picture of a
hospital’s shortcomings, and the amount awarded in litigation may not reflect
the merits of the claims. Yet hospitals say they recognize and account for these
flaws in their review.
The assumed negative effects of malpractice litigation
on patient safety have been used to justify numerous proposals for reform,
including damages caps and “health courts,” administrative bodies that
adjudicate malpractice claims outside the tort system. Politicians, patient
safety advocates and medical providers argue that such reforms will encourage
more open discussions of medical error by removing the specter of liability.
My study suggests, however, that hospitals can — and
have — found ways to increase openness and transparency without these dramatic
interventions. Moreover, because lawsuits help to identify incidents and details
of medical error, limitations on lawsuits may actually impede patient safety
efforts.
The Affordable Care Act pours millions into patient
safety for research centers, demonstration projects and other programs. Proposed
reforms and initiatives should not rely on conventional wisdom about the
negative effects of malpractice litigation. Medical-malpractice lawsuits do not
have the harmful effects on patient safety that they are imagined to have — and,
in fact, they can do some good.
