Does Medical Malpractice Law Improve Health Care Quality?

Michael Frakes

Duke Law School

Anupam B. Jena

Harvard University; National Bureau of Economic Research (NBER)

January 4, 2014

Despite the fundamental role of deterrence in justifying a system of medical malpractice law, surprisingly little evidence has been put forth to date bearing on the relationship between medical liability forces on the one hand and medical errors and health care quality on the other. In this paper, we estimate this relationship using clinically validated measures of health care treatment quality constructed using data from the 1979 to 2005 National Hospital Discharge Surveys and the 1987 to 2008 Behavioral Risk Factor Surveillance System records. Drawing upon traditional, remedy-centric tort reforms — e.g., damage caps — we estimate that the current liability system plays at most a modest role in inducing higher levels of health care quality. We contend that this limited independent role for medical liability may be a reflection upon the structural nature of the present system of liability rules, which largely hold physicians to standards determined according to industry customs. We find evidence suggesting, however, that physician practices may respond more significantly upon a substantive alteration of this system altogether — i.e., upon a change in the clinical standards to which physicians are held in the first instance. The literature to date has largely failed to appreciate the substantive nature of liability rules and may thus be drawing limited inferences based solely on our experiences to date with damage-caps and related reforms.

Number of Pages in PDF File: 82

Keywords: malpractice; health care quality; deterrence; defensive medicine

JEL Classification: I18, K13

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Date posted: January 5, 2014  

Suggested Citation

Frakes, Michael and Jena, Anupam B., Does Medical Malpractice Law Improve Health Care Quality? (January 4, 2014). Available at SSRN: http://ssrn.com/abstract=2374599 or http://dx.doi.org/10.2139/ssrn.2374599

Contact Information

Michael Frakes (Contact Author)
Duke Law School ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States

Anupam B. Jena
Harvard University ( email )
1875 Cambridge Street
Cambridge, MA 02138
United States
National Bureau of Economic Research (NBER) ( email )
1050 Massachusetts Avenue
Cambridge, MA 02138
United States
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