A Dose of Reality for Medical Malpractice Reform
Joanna C. Schwartz
University of California, Los Angeles (UCLA) - School of Law
October 23, 2012
New York University Law Review, Forthcoming
Every year, medical error kills and injures hundreds of thousands of people and costs billions of dollars in lost income, lost household production, disa-bility, and health care expenses. Conventional wisdom is that malpractice litigation does little to improve patient safety and, in fact, harms the cause. Lawsuits are believed to offer little useful information about medical error. And the fear of malpractice liability is believed to inhibit the kind of open-ness and transparency needed to identify and address the root causes of medical error. Critics of the conventional wisdom contend, in contrast, that malpractice litigation brings crucial information about medical error to the surface, and creates financial, political, and institutional pressures to im-prove. Yet both proponents and critics of the conventional wisdom offer scant evidence in support of their claims.
This Article sheds much needed light on this hotly contested debate by ex-amining the role that medical malpractice lawsuits actually play in hospital patient safety efforts. I conducted a national survey of health care profes-sionals and thirty-five in-depth interviews of those responsible for managing risk and improving patient safety in hospitals across the country. Drawing on this research, I find reason to believe that malpractice litigation is not significantly compromising the patient safety movement’s call for transpar-ency. In fact, the opposite appears to be occurring: the openness promoted by patient safety advocates is transforming hospitals’ relationship to law-suits and risk. Hospitals, once afraid of disclosing and discussing error for fear of liability, increasingly encourage transparency with patients and medical staff. Moreover, lawsuits are playing a productive role in hospital patient safety efforts – as a source of valuable data about weaknesses in hospital policy, practices, staff, and administration. These observations should inform open and pressing questions about medical malpractice re-form and the best ways to improve patient safety.
Number of Pages in PDF File: 87
Keywords: medical malpractice, litigation, patient safety, risk management, tort reform, health policyAccepted Paper Series
Date posted: July 13, 2012 ; Last revised: January 6, 2013
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