Medical Malpractice and Patient Safety
http://www.100md.com
《新英格兰医药杂志》
To the Editor: I am troubled by two apparent contradictions in the conclusions reached by Studdert et al. (May 11 issue)1 in their article on medical malpractice litigation. First, why do they say that accounts of "frivolous litigation are overblown" when they found that about 40 percent of malpractice claims show no error or physical injury? Second, if plaintiffs' lawyers truly believe that meritless lawsuits are "bad business," why are there so many?
Although the authors did not look at defensive medicine and its negative effect on physicians' morale and how it compels many physicians to view patients as potential lawsuits, it seems that these issues are inseparable from any discussion of malpractice litigation. Otherwise, members of the public and policymakers will get the impression that frivolous lawsuits are not a concern, contrary to what most doctors feel.
Edward J. Volpintesta, M.D.
Fairfield County Medical Association
Bethel, CT 06801
evolpintesta@snet.net
References
Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med 2006;354:2024-2033.
To the Editor: Studdert et al. find that the legal system performs well roughly three quarters of the time, on the basis of those awarded compensation (deserving and undeserving) of medical malpractice claims. They perceive this finding as a generally positive reflection of the current civil justice system and conclude that caps on damages awards and other "popular" tort reforms will have a small effect. Their conclusion is suspect, however, given that they ignore the fact that their study covers four regions during a 20-year period in which two waves of tort-reform measures were introduced. One could just as easily attribute the positive state of the civil justice system to these reforms. Indeed, any rigorous evaluation of this system requires taking into account changes in tort law. Otherwise, there is no way to conclude that popular tort reforms are indeed unwarranted (as the authors suggest) or, in contrast, crucial to the performance of the legal system.1
Ronen Avraham, S.J.D.
Northwestern University School of Law
Chicago, IL 60611
r-avraham@northwestern.edu
References
Avraham R. Database of state tort law reforms. Northwestern Law & Econ Research paper no. 902711. May 16, 2006. (Accessed July 27, 2006, at http://ssrn.com/abstract=902711.)
To the Editor: Studdert et al. contend that putting a cap on noneconomic damages would do little to stem the filing of meritless medical liability claims. The Texas experience indicates otherwise.
In 2003, Texas lawmakers passed a $750,000 cap for noneconomic damages and other reforms. Since then, the number of lawsuits filed against Texas doctors has been cut nearly in half. Yet the number and dollar amount of indemnity payments remain largely unchanged (unpublished data). Clearly, with the prospects of a runaway verdict reduced, plaintiffs' lawyers have been more selective in choosing the cases they pursue.
Before the passage of tort reform, nearly 90 percent of the medical liability claims in Texas closed without indemnity (unpublished data). This is nearly double the percentage of cases closed without indemnity cited by Studdert et al., who admittedly based their case analysis on "insurers . . . that are not representative of malpractice claims nationwide." The experience of tort reform in Texas shows that caps on noneconomic damages will result in a sharp reduction in meritless claims and improved efficiency in compensating negligent injury.
Howard R. Marcus, M.D.
Texas Alliance for Patient Access
Austin, TX 78731
dr_hmarcus@msn.com
Dr. Marcus reports having served as a board member of Texas Medical Liability Trust.
To the Editor: Physicians strive for the maximal well-being of patients, and safety is inherently a priority. But is patients' safety, as Annas claims (May 11 issue),1 a legal "right"? Its absence is as conspicuous as that of the right to food, shelter, or even health care. Daily, 9 million Americans are hungry, 600,000 sleep without roofs over their heads, and 45 million face illness without health insurance. Troubling as it is, we regularly accept these gross inequities as the price of living with capitalism.
The concept of enterprise liability as a panacea is thought-provoking but flawed in its reductionist approach. Annas asserts that the reduction in anesthesia-related deaths results from liability suits and high insurance premiums. Neglected in this analysis is the introduction of pulse oximetry and capnometry. Science, not lawyers, reduced the number of deaths.2 Technology prevailed because it was a medical advance, not because it saved premium dollars.
I believe that the solution is not more lawsuits but no lawsuits. Rather, harshly discipline unprofessional physicians and take away their licenses. Mandate error reporting and enact a system of no-fault payment that fairly compensates all injured patients.
James A. Greenberg, M.D.
Brigham and Women's Hospital
Boston, MA 02115
jagreenberg@partners.org
References
Annas GJ. The patient's right to safety -- improving the quality of care through litigation against hospitals. N Engl J Med 2006;354:2063-2066.
Tinker JH, Dull DL, Caplan RA, Ward RJ, Cheney FW. Role of monitoring devices in prevention of anesthetic mishaps: a closed claims analysis. Anesthesiology 1989;71:541-546.
Drs. Studdert and Mello reply: Our statement that "portraits of a malpractice system that is stricken with frivolous litigation are overblown" referred to the finding that the costs of claims not involving error accounted for 13 to 16 percent of the total system costs. This proportion is not trivial, but it highlights that the bulk of expenditures relate to claims involving error.
Despite their relatively modest financial effect, claims that involved injuries to patients that were not due to error were nonetheless frequent (37 percent of all claims). Neither our study nor previous research provides an adequate explanation of why such claims are brought. It is difficult to argue that plaintiffs' attorneys find such cases attractive, because they lose most of them (72 percent). We speculate that uncertainty is a driving force in many instances. Injured patients do not understand what has happened to them, or why. Unfortunately, lack of transparency in the current system is a destructively self-perpetuating phenomenon: physicians are reluctant to discuss injuries and errors out of fear of litigation, and patients sometimes sue to find out what happened.
Mr. Avraham questions whether the performance of the malpractice system in matching compensation to errors that we observed may be attributable to tort reforms. In theory, this is possible. Each of the seven states from which the claims in the study sample came had at least some tort-reform measures in place. However, this is an extremely hopeful view of the effect of tort reforms. The leading studies have found that most of these reforms have had either no effect or small effects on their principal targets — the frequency of claims and size of payments.1 We are not aware of any studies that have assessed their effect on the underlying merit of filed claims or the system's precision in resolving claims.
Dr. Marcus reports dramatic drops in the frequency of claims in Texas after the tort-reform bill was passed in that state in 2003. The effect of this reform should be formally evaluated, since the reported decrease is out of step with the findings of a previous, controlled study of the effect of damages caps on claims frequency.2 In the meantime, it is important to be wary of using simple case counts or payment rates as a proxy for underlying merit.
David M. Studdert, LL.B., Sc.D.
Michelle M. Mello, J.D., Ph.D.
Harvard School of Public Health
Boston, MA 02115
studdert@hsph.harvard.edu
References
Mello MM. Medical malpractice: impact of the crisis and effect of state tort reforms. Research synthesis report no. 10. Princeton, N.J.: Robert Wood Johnson Foundation, May 2006.
Zuckerman S, Bovbjerg RR, Sloan F. Effects of tort reforms and other factors on medical malpractice insurance premiums. Inquiry 1990;27:167-182.
Professor Annas replies: Dr. Greenberg is not overly fond of rights, lawyers, or lawsuits, and he is certainly not alone. With regard to rights, he correctly implies that the right to health (including food, shelter, and health care) should be our highest priority. I also agree that hospitals must adopt lifesaving technology, but the technology he admires, pulse oximetry, was not adopted by many hospitals until judges and juries declared it a standard of care.1 And that is the point of patients' right to safety.
Physicians are committed to the health and safety of their patients. Unfortunately, many hospitals have not been. Lawsuits to motivate hospital boards to adopt evidence-based safety standards, including those recommended by the 100,000 Lives Campaign, can literally save lives.2,3 Continuing old medical malpractice debates cannot. In promoting patients' safety, physicians and lawyers can work together to achieve a common goal — to save the lives of patients in hospitals — that neither profession is likely to achieve alone.4
George J. Annas, J.D., M.P.H.
Boston University School of Public Health
Boston, MA 02118
annasgj@bu.edu
References
Washington v. Washington Hospital Center, 579 A.2d 177 (D.C. App. 1990).
Berwick DM, Calkins DR, McCannon CJ, Hackbarth AD. The 100,000 Lives Campaign: setting a goal and a deadline for improving health care quality. JAMA 2006;295:324-327.
Gosfield AG, Reinertsen JL. The 100,000 Lives Campaign: crystallizing standards of care for hospitals. Health Aff (Millwood) 2005;24:1560-1570.
Annas GJ. The patient's right to safety -- improving the quality of care through litigation against hospitals. N Engl J Med 2006;354:2063-2066.
Although the authors did not look at defensive medicine and its negative effect on physicians' morale and how it compels many physicians to view patients as potential lawsuits, it seems that these issues are inseparable from any discussion of malpractice litigation. Otherwise, members of the public and policymakers will get the impression that frivolous lawsuits are not a concern, contrary to what most doctors feel.
Edward J. Volpintesta, M.D.
Fairfield County Medical Association
Bethel, CT 06801
evolpintesta@snet.net
References
Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med 2006;354:2024-2033.
To the Editor: Studdert et al. find that the legal system performs well roughly three quarters of the time, on the basis of those awarded compensation (deserving and undeserving) of medical malpractice claims. They perceive this finding as a generally positive reflection of the current civil justice system and conclude that caps on damages awards and other "popular" tort reforms will have a small effect. Their conclusion is suspect, however, given that they ignore the fact that their study covers four regions during a 20-year period in which two waves of tort-reform measures were introduced. One could just as easily attribute the positive state of the civil justice system to these reforms. Indeed, any rigorous evaluation of this system requires taking into account changes in tort law. Otherwise, there is no way to conclude that popular tort reforms are indeed unwarranted (as the authors suggest) or, in contrast, crucial to the performance of the legal system.1
Ronen Avraham, S.J.D.
Northwestern University School of Law
Chicago, IL 60611
r-avraham@northwestern.edu
References
Avraham R. Database of state tort law reforms. Northwestern Law & Econ Research paper no. 902711. May 16, 2006. (Accessed July 27, 2006, at http://ssrn.com/abstract=902711.)
To the Editor: Studdert et al. contend that putting a cap on noneconomic damages would do little to stem the filing of meritless medical liability claims. The Texas experience indicates otherwise.
In 2003, Texas lawmakers passed a $750,000 cap for noneconomic damages and other reforms. Since then, the number of lawsuits filed against Texas doctors has been cut nearly in half. Yet the number and dollar amount of indemnity payments remain largely unchanged (unpublished data). Clearly, with the prospects of a runaway verdict reduced, plaintiffs' lawyers have been more selective in choosing the cases they pursue.
Before the passage of tort reform, nearly 90 percent of the medical liability claims in Texas closed without indemnity (unpublished data). This is nearly double the percentage of cases closed without indemnity cited by Studdert et al., who admittedly based their case analysis on "insurers . . . that are not representative of malpractice claims nationwide." The experience of tort reform in Texas shows that caps on noneconomic damages will result in a sharp reduction in meritless claims and improved efficiency in compensating negligent injury.
Howard R. Marcus, M.D.
Texas Alliance for Patient Access
Austin, TX 78731
dr_hmarcus@msn.com
Dr. Marcus reports having served as a board member of Texas Medical Liability Trust.
To the Editor: Physicians strive for the maximal well-being of patients, and safety is inherently a priority. But is patients' safety, as Annas claims (May 11 issue),1 a legal "right"? Its absence is as conspicuous as that of the right to food, shelter, or even health care. Daily, 9 million Americans are hungry, 600,000 sleep without roofs over their heads, and 45 million face illness without health insurance. Troubling as it is, we regularly accept these gross inequities as the price of living with capitalism.
The concept of enterprise liability as a panacea is thought-provoking but flawed in its reductionist approach. Annas asserts that the reduction in anesthesia-related deaths results from liability suits and high insurance premiums. Neglected in this analysis is the introduction of pulse oximetry and capnometry. Science, not lawyers, reduced the number of deaths.2 Technology prevailed because it was a medical advance, not because it saved premium dollars.
I believe that the solution is not more lawsuits but no lawsuits. Rather, harshly discipline unprofessional physicians and take away their licenses. Mandate error reporting and enact a system of no-fault payment that fairly compensates all injured patients.
James A. Greenberg, M.D.
Brigham and Women's Hospital
Boston, MA 02115
jagreenberg@partners.org
References
Annas GJ. The patient's right to safety -- improving the quality of care through litigation against hospitals. N Engl J Med 2006;354:2063-2066.
Tinker JH, Dull DL, Caplan RA, Ward RJ, Cheney FW. Role of monitoring devices in prevention of anesthetic mishaps: a closed claims analysis. Anesthesiology 1989;71:541-546.
Drs. Studdert and Mello reply: Our statement that "portraits of a malpractice system that is stricken with frivolous litigation are overblown" referred to the finding that the costs of claims not involving error accounted for 13 to 16 percent of the total system costs. This proportion is not trivial, but it highlights that the bulk of expenditures relate to claims involving error.
Despite their relatively modest financial effect, claims that involved injuries to patients that were not due to error were nonetheless frequent (37 percent of all claims). Neither our study nor previous research provides an adequate explanation of why such claims are brought. It is difficult to argue that plaintiffs' attorneys find such cases attractive, because they lose most of them (72 percent). We speculate that uncertainty is a driving force in many instances. Injured patients do not understand what has happened to them, or why. Unfortunately, lack of transparency in the current system is a destructively self-perpetuating phenomenon: physicians are reluctant to discuss injuries and errors out of fear of litigation, and patients sometimes sue to find out what happened.
Mr. Avraham questions whether the performance of the malpractice system in matching compensation to errors that we observed may be attributable to tort reforms. In theory, this is possible. Each of the seven states from which the claims in the study sample came had at least some tort-reform measures in place. However, this is an extremely hopeful view of the effect of tort reforms. The leading studies have found that most of these reforms have had either no effect or small effects on their principal targets — the frequency of claims and size of payments.1 We are not aware of any studies that have assessed their effect on the underlying merit of filed claims or the system's precision in resolving claims.
Dr. Marcus reports dramatic drops in the frequency of claims in Texas after the tort-reform bill was passed in that state in 2003. The effect of this reform should be formally evaluated, since the reported decrease is out of step with the findings of a previous, controlled study of the effect of damages caps on claims frequency.2 In the meantime, it is important to be wary of using simple case counts or payment rates as a proxy for underlying merit.
David M. Studdert, LL.B., Sc.D.
Michelle M. Mello, J.D., Ph.D.
Harvard School of Public Health
Boston, MA 02115
studdert@hsph.harvard.edu
References
Mello MM. Medical malpractice: impact of the crisis and effect of state tort reforms. Research synthesis report no. 10. Princeton, N.J.: Robert Wood Johnson Foundation, May 2006.
Zuckerman S, Bovbjerg RR, Sloan F. Effects of tort reforms and other factors on medical malpractice insurance premiums. Inquiry 1990;27:167-182.
Professor Annas replies: Dr. Greenberg is not overly fond of rights, lawyers, or lawsuits, and he is certainly not alone. With regard to rights, he correctly implies that the right to health (including food, shelter, and health care) should be our highest priority. I also agree that hospitals must adopt lifesaving technology, but the technology he admires, pulse oximetry, was not adopted by many hospitals until judges and juries declared it a standard of care.1 And that is the point of patients' right to safety.
Physicians are committed to the health and safety of their patients. Unfortunately, many hospitals have not been. Lawsuits to motivate hospital boards to adopt evidence-based safety standards, including those recommended by the 100,000 Lives Campaign, can literally save lives.2,3 Continuing old medical malpractice debates cannot. In promoting patients' safety, physicians and lawyers can work together to achieve a common goal — to save the lives of patients in hospitals — that neither profession is likely to achieve alone.4
George J. Annas, J.D., M.P.H.
Boston University School of Public Health
Boston, MA 02118
annasgj@bu.edu
References
Washington v. Washington Hospital Center, 579 A.2d 177 (D.C. App. 1990).
Berwick DM, Calkins DR, McCannon CJ, Hackbarth AD. The 100,000 Lives Campaign: setting a goal and a deadline for improving health care quality. JAMA 2006;295:324-327.
Gosfield AG, Reinertsen JL. The 100,000 Lives Campaign: crystallizing standards of care for hospitals. Health Aff (Millwood) 2005;24:1560-1570.
Annas GJ. The patient's right to safety -- improving the quality of care through litigation against hospitals. N Engl J Med 2006;354:2063-2066.