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The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution?


David A. Hyman


University of Illinois College of Law

Charles Silver


University of Texas at Austin - School of Law

March 28, 2004

U of Texas Law, Law and Econ Research Paper No. 038
U of Texas Public Law Research Paper No. 044
U of Maryland Legal Studies Research Paper No. 2004-08

Abstract:     
The belief that malpractice lawsuits impede efforts to improve health care quality by encouraging providers to hide mistakes is the conventional wisdom among patient safety advocates and scholars. It also provides the normative basis for efforts currently proceeding at the state and federal levels to curtail medical malpractice exposure. Groups pressing for tort reform, including the American Medical Association, contend that when doctors and other providers are insulated from liability, patients will be better protected from harm.

This article canvasses the evidence bearing on the connection between malpractice exposure and health care quality. Some of this evidence, such as the Harvard Medical Practice Study, shows that the quality of health care improves as the risk of being sued rises; none of it shows that malpractice lawsuits cause the quality of health care to decline. The widely held belief that fear of malpractice liability impedes efforts to improve the reliability of health care delivery systems is unfounded.

The central causes of the high error rates that persist in the health care sector appear to be providers' defective incentives and professional norms. Providers lose money when quality improves, and their norms discourage the creation of non-punitive working environments in which efforts to improve quality can flourish. The business case for quality is missing, and providers' attitudes are antithetical to quality improvement. The tort system's major deficiency is its failure to subject providers to sufficient economic pressure to overcome these impediments. The cause of this shortcoming is the rarity with which injured patients assert legal claims.

Number of Pages in PDF File: 89

Keywords: medical malpractice, patient safety, health care quality

JEL Classification: H51, I18, I19, K13, K41

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Date posted: January 25, 2005  

Suggested Citation

Hyman, David A. and Silver, Charles, The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution? (March 28, 2004). U of Texas Law, Law and Econ Research Paper No. 038; U of Texas Public Law Research Paper No. 044; U of Maryland Legal Studies Research Paper No. 2004-08. Available at SSRN: http://ssrn.com/abstract=526762 or http://dx.doi.org/10.2139/ssrn.526762

Contact Information

David A. Hyman
University of Illinois College of Law ( email )
504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
Charles M. Silver (Contact Author)
University of Texas at Austin - School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1337 (Phone)
512-232-1372 (Fax)
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