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Does Medical Malpractice Deter? The Impact of Tort Reforms and Malpractice Standard Reforms on Healthcare Quality

40 Pages Posted: 25 Jun 2012 Last revised: 22 Aug 2013

Michael Frakes

Duke University School of Law

Date Written: June 25, 2012

Abstract

Despite the fundamental role of deterrence in the theoretical justification for medical malpractice law, surprisingly little evidence has been put forth to date bearing on its existence and scope. Using data from the 1979 to 2005 National Hospital Discharge Surveys and drawing on an extensive set of variations in various tort measures (e.g., damage caps) and malpractice standard-of-care rules (Frakes 2012a), I estimate a small and statistically insignificant relationship between malpractice forces and two metrics of healthcare quality emphasized by the Agency for Healthcare Research and Quality: avoidable hospitalization rates (reflective of outpatient quality) and inpatient mortality rates for selected medical conditions. At most, the evidence implies an arguably modest degree of malpractice-induced deterrence. For instance, at one end of the 95% confidence interval, the lack of a non-economic damages cap (indicative of higher malpractice pressure) is associated with only a 4% decrease in avoidable hospitalizations.

Keywords: malpractice, healthcare quality, deterrence, defensive medicine

JEL Classification: I18, K13

Suggested Citation

Frakes, Michael, Does Medical Malpractice Deter? The Impact of Tort Reforms and Malpractice Standard Reforms on Healthcare Quality (June 25, 2012). Cornell Legal Studies Research Paper No. 12-29; 7th Annual Conference on Empirical Legal Studies Paper. Available at SSRN: https://ssrn.com/abstract=2090595 or http://dx.doi.org/10.2139/ssrn.2090595

Michael Frakes (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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