Does Malpractice Liability Lead to Improved Health Care Quality?

By | August 11, 2020

Interestingly, when we examine the effect of malpractice liability, we first must recall why it is in existence. It was designed to serve three functions: compensate patients injured by negligence, promote corrective justice by providing a mechanism to rectify wrongful losses caused by defendants and to deter negligent behavior.

In theory, deterring negligence should enhance health care quality and safety, which means, the idea that if I create enough disincentive, then behaviors will change. However, does the threat of litigation or seeing the reasons it occurs in fact create such results?  A recent review of the available data by Mello et al. reveals in fact, there is no association between malpractice liability risk and health care quality measures. Furthermore, some would argue that such fear of risk has caused the opposite to occur since the practice of “defensive” medicine, which is costly, not consumer-centric, can even lead to harm secondary to increases in unnecessary testing and procedures.

There are various reasons for the likelihood of this failure. The most prevalent is that frequently, instances of negligence that cause harm never become malpractice cases, and there are numerous cases with dubious merit brought forth. Therefore, there is a disassociation between the desired effect and occurrences of claims. Additionally, Insurance is a contributing factor. For instance, malpractice premiums are not tied to individual incidents as they are with motor vehicle coverage; therefore, as a physician, I do not feel the direct influence of the financial burden. Several other factors influence my desire to avoid litigation, including the hassle factor, reputation, and the feeling of personal failure.  Finally, there is uncertainty about the legal standard to which I am measured. What is the definition of “negligence”? Truthfully, it is cumbersome for me to change my behavior based on an intervention if I fail to understand where my accountability lies.

If we genuinely wish to deliver on the desired goal of malpractice liability, it is imperative to select an entirely different approach. To begin, we may want to create a “pool” of dollars to compensate patients for predefined outcomes based on an agreed-upon definition of negligence. We then tie compensation models, human behavior interventions, and system thinking to mitigate possible occurrences. Next, we move towards a model that offers proactive compensation when deviations from standards of care occur, thus increasing the proportion of negligent events identified. This latter point will allow us to understand the level of occurrences better, hence, reinforcing the economic and psychological mechanisms of deterrence. By better aligning true claims with true events, we decrease the uncertainty. And hopefully begin to focus on how to design systems that improve quality and safety, versus how to avoid being sued when there is no actual correlation to events and suits, and provide an in-depth understanding of why, or an immediate feedback loop for enhanced learning.

Only by pivoting towards learning versus punitive models will we succeed in improving quality and safety while simultaneously compensating those that receive injuries inappropriately.