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A Dose of Reality for Medical Malpractice Reform


Joanna C. Schwartz


University of California, Los Angeles (UCLA) - School of Law

October 9, 2013

88 NYU L. Rev. 1224 (2013)
UCLA School of Law Research Paper No. 13-37

Abstract:     
Every year, medical error kills and injures hundreds of thousands of people and costs billions of dollars in lost income, lost household production, disability, and healthcare expenses. In recent years, hospitals have implemented multiple systems to gather information about medical errors, understand the causes of these errors, and change policies and practices to improve patient safety. The effect of malpractice lawsuits on these patient safety efforts is hotly contested. Some believe that the fear of malpractice liability inhibits the kind of openness and transparency needed to identify and address the root causes of medical error. Others believe that malpractice litigation brings crucial information about medical error to the surface and creates financial, political, and institutional pressures to improve. Yet neither side in this debate offers much evidence to support its claims.

Drawing on a national survey of healthcare professionals and thirty-five in-depth interviews of those responsible for managing risk and improving patient safety in hospitals across the country, I find reason to believe that malpractice litigation is not significantly compromising 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. Hospitals, once afraid of disclosing and discussing error for fear of liability, increasingly encourage transparency with patients and medical staff. Moreover, lawsuits play a productive role in hospital patient safety efforts by revealing valuable information about weaknesses in hospital policies, practices, providers, and administration. These findings should inform open and pressing questions about medical malpractice reform and the best ways to continue improving patient safety.

Number of Pages in PDF File: 84

Keywords: medical malpractice, litigation, patient safety, risk management, tort reform, health policy

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Date posted: July 13, 2012 ; Last revised: October 22, 2013

Suggested Citation

Schwartz, Joanna C., A Dose of Reality for Medical Malpractice Reform (October 9, 2013). 88 NYU L. Rev. 1224 (2013) ; UCLA School of Law Research Paper No. 13-37. Available at SSRN: http://ssrn.com/abstract=2104964 or http://dx.doi.org/10.2139/ssrn.2104964

Contact Information

Joanna C. Schwartz (Contact Author)
University of California, Los Angeles (UCLA) - School of Law ( email )
385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
(310) 206-4032 (Phone)
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