True or False: There are far more medical malpractice claims than there are adverse outcomes in medical care.
False, explains Frank Sloan, Ph.D., recipient of a Robert Wood Johnson Foundation (RWJF) Investigator Award in Health Policy Research (2003-2007) and expert in the many misunderstood issues related to medical malpractice in the United States.
“There are five major myths about medical malpractice and a great deal of confusion among policy-makers about what malpractice really is and is not,” says Sloan, a speaker in the 2011 National Scholars’ Current Issues in Health Policy Seminar at Meharry Medical College in Nashville.
In an effort to help health policy students learn how to sort fact from fiction when assessing potential malpractice rules and regulations, Sloan emphasizes the importance of understanding the source of much of the information we have about malpractice claims.
“Health policy students—and other medical professionals—need to be critical of the data that’s presented about medical malpractice. The discussion is being driven by stakeholders who put the science aside to focus on political arguments,” Sloan says. To even begin to formulate reasonable reforms of our malpractice system, policy-makers must have the correct information, he advises.
The first and most common myth is that people just file malpractice suits for cash, assuming physicians’ insurance policies will pay, and that the number of suits is much higher than actual instances of medical negligence. That’s not at all the case, says Sloan, the J. Alex McMahon Professor in Health Policy at Duke University. “Studies looking at health care outcomes and making an effort to connect provider negligence to the number of suits show that there are a lot of adverse health care events, but only two percent of those adverse events lead to malpractice lawsuits.”
Yet, as far as many people in government and society are concerned, there’s the idea that “malpractice suits are a lottery,” Sloan adds, citing key myth number two. “That malpractice awards amount to jackpot justice. Again, reviews of the merits of cases against physicians show that liability is directly related to the amount of payouts. And in fact, 26 percent of malpractice plaintiffs get nothing, while others do not recover their full economic losses or get compensation for pain and suffering,” he explains.
And of course the greatest concern about malpractice awards for many health care professionals is that the threat of lawsuits and big payoffs drives up health care costs. “Malpractice costs may account for one to two percent of medical expenditures,” Sloan says, “but there are experts who say the real cost is in the practice of defensive medicine [unnecessary tests and procedures ordered to protect doctors from liability], but we have no proof of that. We also have no good evidence that the existing threat of litigation improves care outcomes.”
Tuning Up the Malpractice System
Of these myths and the others covered in his Meharry presentation, Sloan says, “the malpractice system is not as bad as some people say or as good as others suggest. Many of the myths exist because the few malpractice stories that people hear are inevitably those that involve huge awards.”
Moving beyond the myths, Sloan suggests the emphasis should be on reviewing and reforming the system in ways that will improve patient care. “Though that’s not the way the first generation of reform suggestions have been structured,” he says. “Among physicians, ‘reform’ has come to mean ‘lower my insurance premiums,’ but of course this does not create incentives to increase patient safety. Some popular reforms may reduce premiums but they are unlikely to have an effect on the quality of patient care.”
Sloan also highlights second generation, or newer reform suggestions that include: “no fault or no attorney private contracts with physicians that stipulate levels of care [a way of defining injuries without using the tort system]; public re-insurance, layers of coverage or pool insurance with limits; health care courts that would specialize in malpractice cases; or suing organizations, rather than physicians.” It is by no means a given that the second-generation reforms would improve patient care either, Sloan adds, “but they may if properly structured. The devil is in the details of program design. There are no simple answers or panaceas when it comes to malpractice reform.”
And even though there is great complexity involved in the reform process and a need to safeguard the interests of patients, as well as medical professionals, Sloan notes that “there’s very little in the Affordable Care Act that addresses malpractice liability.”
In his 2008 book, Medical Malpractice, an RWJF Investigator Award-supported project, Sloan and co-author Lindsey Chepke further explore the issues discussed here. “The book separates empirical evidence from the myths of malpractice and discusses alternatives for reform in depth. In the end, Sloan says, “there is unlikely to be a silver bullet that will improve patient outcomes at a reasonable cost. Medical malpractice should be seen as part of a comprehensive strategy to improve health care. It is not the devil as some maintain or a knight in shining armor as others assert. Rather, if the incentives are created correctly, policies to address medical malpractice are one of several tools that may be used to improve the quality of care that patients receive.”
The Robert Wood Johnson Foundation’s Investigator Awards in Health Policy Research provide funding to highly qualified individuals undertaking broad studies of the most challenging health, health care and health policy issues facing America. Grants are awarded to Investigators from a wide range of disciplines. Their work reflects thinking that is creative and conceptual and crosses disciplinary boundaries in search of knowledge and innovative solutions to critical health problems and policy issues.