Universal coverage as a route to medmal reform

Universal, guaranteed access to health insurance is likely a necessary condition for a comprehensive medical malpractice reform, that advocates of such reform often seem to miss.

I think the cost savings that would occur under a malpractice reform are real, but oversold. However, the medical malpractice system that we have in the U.S. does almost nothing well and needs to be reformed for many non-cost reasons. Our current system does not:

  • protect patients from harm
  • physicians from frivolous suits
  • provide a good risk adjustor with which set malpractice insurance premiums
  • identify physicians in need of remediation or stronger sanctions
  • efficiently compensate victims of actual malpractice that is identified

The tragic story of Andrea Campbell’s sister in law has rightly gotten a great deal of attention today (Harold Pollack’s take; Paul Kelleher’s).

I have no idea if the horrific event described by Andrea Campbell was the result of any sort of negligent act or not, but the need for health insurance for a profoundly injured person with limited future options for coverage can be expected to lead persons to file lawsuits when they otherwise might not be inclined to do so. Providing a guaranteed route to health insurance for profoundly injured persons (including from accidents in the health care system) is likely an important prerequisite to a comprehensive malpractice reform that can begin to address the many problems with our current system. This point seems to be missed by many.

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Some links and resources on medmal

  • Frank Sloan and Lindsey Chepke have a book Medical Malpractice, published in 2008 by MIT Press. Very detailed discussion of the policy options regarding dealing with malpractice.
  • Several key papers that form the background of what is in the article, much of it published by David Studdert, Michelle Mello and Troyen Brennan.
  • 2006 paper in New England Journal of Medicine that is the source of the finding that 4 in 10 lawsuits filed did not have an error in care provided.
  • 2004 paper in the New England Journal of Medicine that provides a comprehensive overview of the literature, including the finding that only 2% of all true negligence results in a lawsuit.
  • 2003 paper in the New England Journal of Medicine that has a nice historical discussion of the cyclical nature of the malpractice insurance premium crisis, including the factors that have nothing to do with actual claims experience.
  • Institute of Medicine report from 1999 To Err is Human, altered the discussion away from only being on focused on a malpractice crisis, and to there being a patient safety/quality crisis. This report estimated that 44,000-98,000 persons died of medical errors annually, which would make it the 7th leading cause of death in the U.S. Update of this report from May, 2009 is here, published by the Safe Patient Project, an effort of the Consumers Union. Here is someone saying the IOM overstated deaths due to errors. Even if they were off by a factor of 10, then that is still about 25 people per day dying due to medical errors in the US.
  • The Harvard Medical Practice Study has produced many papers over the past 17 or 18 years on the topic of malpractice. This is a key study because it had completely overlapping data on the legal system and the medical system. Probably the most important paper from this study is here (original source of 2% of negligence resulting in a claim) with a reprint of it here. There are many others.
  • Update: The April 5, 2012 NEJM has a data driven letter to the editor on costs of litigation.

About Don Taylor
Professor of Public Policy at Duke University (with appointments in Business, Nursing, Community and Family Medicine, and the Duke Clinical Research Institute). I am one of the founding faculty of the Margolis Center for Health Policy, and currently serve as Chair of Duke's University Priorities Committee (UPC). My research focuses on improving care for persons who are dying, and I am co-PI of a CMMI award in Community Based Palliative Care. I teach both undergrads and grad students at Duke. On twitter @donaldhtaylorjr

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