New evidence, however, contradicts the conventional wisdom that malpractice
litigation compromises the patient safety movement’s call for transparency.
In fact, the opposite appears to be occurring: the openness and transparency
promoted by patient safety advocates appear to be influencing hospitals’
responses to litigation risk.
I recently surveyed more than 400 people responsible for hospital risk
management, claims management and quality improvement in health care centers
around the country, in cooperation with the American Society of Health
Care Risk Managers, and I interviewed dozens more.
My interviewees confirmed that while hospitals historically took an adversarial
and secretive approach to lawsuits and error, that has begun to change.
In recent years, hospitals have become increasingly open with patients:
over 80 percent of hospitals in my study have a policy of apologizing
to patients when errors occur. And hospitals are more willing to discuss
and learn from errors with hospital staff.
What accounts for these changes? Several factors appear to have overcome
historical resistance to transparency, including widespread laws requiring
disclosure to patients and confidentiality protections for internal discussions
of error. Hospitals have also found that disclosing errors to patients
and offering early settlements reduces the costs and frequency of litigation.
My study also shows that malpractice suits are playing an unexpected role
in patient safety efforts, as a source of valuable information about medical
error. Over 95 percent of the hospitals in my study integrate information
from lawsuits into patient safety efforts. And risk managers and patient-safety
personnel overwhelmingly report that lawsuit data have proved useful in
efforts to identify and address error.
One might think that hospitals would have little to learn from lawsuits,
given other requirements that hospitals report, investigate and analyze
medical error. But participants in my study said that lawsuits can reveal
previously unknown incidents of medical errors — particularly diagnostic
and treatment errors with delayed manifestations that other reporting
systems are not designed to collect.
Lawsuits can also reveal errors that should have been reported but were
not — medical providers notoriously underreport errors (although
studies have shown that the threat of litigation is not responsible for
this underreporting) and lawsuits may fill these gaps.
Moreover, litigation discovery can unearth useful details about safety
and quality concerns. Analyses of claim trends can reveal problematic
procedures and departments, and closed litigation files can serve as rich
True, malpractice litigation data also have many flaws: too few malpractice
claims are filed to reflect an accurate picture of a hospital’s
shortcomings, and the amount awarded in litigation may not reflect the
merits of the claims. Yet hospitals say they recognize and account for
these flaws in their review.
The assumed negative effects of malpractice litigation on patient safety
have been used to justify numerous proposals for reform, including damages
caps and “health courts,” administrative bodies that adjudicate
malpractice claims outside the tort system. Politicians, patient safety
advocates and medical providers argue that such reforms will encourage
more open discussions of medical error by removing the specter of liability.
My study suggests, however, that hospitals can — and have —
found ways to increase openness and transparency without these dramatic
interventions. Moreover, because lawsuits help to identify incidents and
details of medical error, limitations on lawsuits may actually impede
patient safety efforts.
The Affordable Care Act pours millions into patient safety for research
centers, demonstration projects and other programs. Proposed reforms and
initiatives should not rely on conventional wisdom about the negative
effects of malpractice litigation. Medical-malpractice lawsuits do not
have the harmful effects on patient safety that they are imagined to have
— and, in fact, they can do some good.
Joanna C. Schwartz is an assistant professor of law at the University of California, Los Angeles.