Risk Management and Perioperative Quality

Medical Malpractice as Deterrence: A Failed Approach to Quality and Patient Safety

Despite the high cost of the medical liability system, there are serious concerns about whether the medical malpractice system facilitates or hinders improvements in healthcare quality and patient safety. By providing access to the courts, the medical malpractice system has two aspirational goals: (1) to deter negligence and (2) to provide a remedy for patients injured by negligent medical care. Neither goal appears to be adequately achieved. Improving healthcare quality would be expected to decrease negligence. One systematic review looked at the association between medical malpractice liability risk and healthcare quality and safety. Among 20 studies of patient mortality in nonobstetrical care settings, 16 found no evidence of an association with liability risk and 4 with only limited evidence. The authors concluded that greater tort liability—as currently practiced—was not associated with improved quality of care.

In an observational study of short-term, acute-care general hospitals in the United States using publicly reported measures of state-specific malpractice environments, no consistent association between malpractice environment and hospital process-of-care measures was found. There was, however, evidence that defensive medicine was increased with malpractice risk. Specific examples included observations that hospitals in areas with a higher Medicare Malpractice Geographical Practice Cost Index (MGPCI) or a composite measure were associated with overutilization of cardiac stress testing and brain/sinus computed tomography (CT) scans, respectively. Also, the study found that acute myocardial infarction, heart failure, and pneumonia were more likely to have higher 30-day readmission rates in high malpractice risk environments.

Therefore the goal of improving quality and patient safety is not achieved by increased malpractice risk. The goal of providing a remedy for patients injured by negligent care seems to also be unmet. Plaintiffs’ attorneys work on a contingent basis, and generally take 30% to 40% of damage awards, plus expenses, but take nothing if the jury finds for the defendant. Selecting the right client is critical to a personal injury attorney's professional survival. To be found worthy of representation, a variety of tests have been used, including: prior negligence by the defendant, how a jury would react, and the fact that the attorney may be involved in a case for years.

The effort with which clients are selected for representation in medical malpractice litigation aside, many complaints are filed that do not support allegations of negligence. In a study of 98 claims, only 47 were confirmed as being the result of treatment in the given time period; of these, no negligence or even injury was found in more than half. Of 98 claims, only 8 were considered to allege adverse events related to negligent treatment; 10 claims involved hospitalization that had produced injuries not thought to be because of physician negligence; and 3 cases exhibited some evidence of medical causation but not enough to pass the study's negligence criteria. Twenty-six of the reviewed claims—greater than half—provided neither evidence of medical injury nor negligence.

The high bar set by malpractice attorneys for filing a claim on behalf of clients leads to a malpractice gap. Again, the classic Harvard Medical Practice Study reviewed more than 31,000 medical records; 1100 medical injuries were noted. Of these, 280 were thought negligent but resulted in only 8 malpractice claims—less than 2%! As confirmation of the malpractice gap noted in the HMPS study, a review of claims filed in Utah and Colorado showed 18 malpractice claims in a sample of 14,700 hospital discharges. Fourteen of the 18 claims were not thought by reviewers to be because of negligence. Another estimate of the litigation gap can be made by results of the statewide medical chart reviews, which estimated 27,179 negligent injuries and 3571 patient claims for 1984 treatment—one claim for every 7.6 estimated negligent injuries. When calculating the claims data as a ratio based on sampling weight, the chances that a claim would be filed decreased to 1 in 50.

Where, then, might attempts to decrease malpractice risk and improve patient safety and quality intersect? The University of Pennsylvania Health System (UPHS) has embarked on a years-long effort to reduce malpractice risk by focusing on certain quality metrics. A key component of this strategy is the Risk Reduction Initiative (RRI), which uses a “grassroots” or department-level approach to engage physicians and surgeons in risk mitigation activities to reduce malpractice costs. Clinical communities can be organized to achieve common quality improvement goals. Using a faculty-driven approach, each clinical department proposes and executes one or more interventions in recognition of an area of high risk or prior malpractice claims data. To engage faculty and incentivize completion of the RRIs, a portion of the primary layer of malpractice premiums was offered for use in future quality and risk reduction activities. Since starting the RRI program, more than 250 proposals have been submitted by clinical departments (e.g., surgery, medicine, anesthesia) and $14 million have been awarded. Importantly, the number of malpractice claims and malpractice costs decreased. Although it is difficult to assure cause and effect, the combined impact of these bottom-up department-initiated interventions and engaging faculty to become actively involved in risk mitigation as a means to patient safety and quality improvement is a positive strategy for reducing malpractice claims and costs.