Malpractice Litigation Wrongly Blamed For Inconsistent Health Care
CHAMPAIGN, Ill. -- Conventional wisdom holds that malpractice lawsuits
are the bane of modern medicine, with high insurance premiums driving
doctors from the profession and the threat of lawsuits discouraging
health-care employees from reporting and correcting medical mistakes.

Examining these claims in a lengthy article in the Cornell Law Review
and a shorter article in Regulation, a University of Illinois
health-law scholar finds most of the assertions to be without factual
basis.

"Health care is substantially more dangerous than it should be," David
A. Hyman, Illinois professor of law and of medicine, concludes in
articles co-written with Charles Silver, a law professor at the
University of Texas. But malpractice litigation has little to do with
the continuing failure of medical providers to deal effectively with
the erratic quality of health care.

"In the United States, it is true both that one can obtain the best
available care for most maladies and that health-care errors are the
eighth leading cause of death, ranking ahead of AIDS, motor vehicle
accidents and breast cancer," Hyman and Silver wrote. For example,
hospital-acquired infections are so common that one estimate indicates
that proper hand washing by health-care workers alone would save 20,000
lives a year.

In addition, according to the articles, health-care providers
"routinely omit indicated procedures of known value, frequently perform
treatments that are unnecessary and inefficacious, and employ practice
patterns that vary widely and for no good reason. Adverse drug events
are distressingly common. Tens of billions of dollars are spent
annually on medical services whose value is questionable or
non-existent."

Hyman, who has an M.D. and law degree, teaches health-care regulation
and civil procedure. He attributed inconsistencies in health care in
part to medical education and culture. Medical schools "do not teach
modern quality assessment and improvement techniques. Instead, they
teach students to make independent judgments and to treasure clinical
autonomy.

"This training may often benefit patients by supplying them with agents
who have the confidence to do what is right. But professional
independence can have a significant downside for patients as well."
According to Hyman and Silver, many doctors still resist computerized
diagnostic and risk-assessment tools that have demonstrated their
superiority to a clinician's subjective judgments.

"Physicians often deride such approaches as 'cookbook medicine,' and
non-physicians have historically deferred to doctors on quality-related
issues," they wrote.

But equally important are the economic disincentives built into the
system that favor cost -- and cost reduction -- over quality of service
and patient safety. Fee-for-service compensation, the traditional mode
for medical payment by insurers, gives hospitals and physicians an
incentive to prescribe treatments and drugs that may not be necessary
and to curtail programs that result in a loss of hospital or physician
revenue.

"Health-care providers worry less about quality than they should
because they are not paid to do so," the authors wrote. This problem is
demonstrated by the comparative lack of information technology applied
to medical procedures and treatments, as opposed to the latest software
used for hospital billing.

"Hospitals know that computerized physician order entry systems greatly
reduce the frequency of medication mistakes, but do not use them
because they are expensive. Doctors know that electronic medical
records improve the quality of care, but do not use them because most
independent practices are too small to afford the technology. Few
emergency rooms have patient-protecting software because of limited
resource pooling and economies of scale. Over and over, one finds that
providers fail to implement proven patient safety measures because they
lack incentives to bear the cost."

In this context, liability laws and malpractice suits have a modest
positive effect on behavior, the authors asserted.

"Liability encourages producers of goods and services to exercise due
care by forcing them to internalize the costs of their negligence ...
We do not contend that the civil justice system creates optimal
incentives for providers to protect patients from avoidable errors. It
does not and, in all likelihood, it never will. Our point is that
unless and until changes in compensation arrangements create a business
case for quality, providers will continue to provide low-quality care
to many patients, and the health-care sector will under-perform the
rest of the economy."

Earlier this year, Congress considered a measure to cap non-economic
damages to victims of medical malpractice at $250,000. The American
Medical Association, representing doctors, and the Physician Insurers
Association of America, a coalition of malpractice insurers, are
lobbying for the cap. President George W. Bush has made a limit on
non-economic damages a key component of his malpractice-reform
proposals.

These proposals may make liability insurance more affordable in the
long run, but they will do little to improve the quality of patient
care, according to Hyman and Silver. Market-based reforms could do a
better job. They recommend such strategies as allowing malpractice
premiums to rise and requiring "repeat offenders" to undergo quality
audits.

The scholars further recommend that physicians who adhere to
evidence-based medical standards developed by the profession be immune
from malpractice suits. "If physicians fear malpractice as much as they
say they do, the prospect of immunity should be an immediate incentive
for the implementation of these standards."

Hyman is a professor in the Illinois College of Law, College of
Medicine and Institute of Government and Public Affairs. Silver is
co-director of the Center on Lawyers, Civil Justice and the Media at
the University of Texas School of Law.

Their article in the Cornell Law Review is titled "The Poor State of
Health-Care Quality in the U.S." Their article in Regulation is titled
"Speak No Evil."