Posted: 14 Jan 2007
Pressure is increasing for physicians and hospitals to be more open with patients about medical errors and adverse events. An oft-heard view in policy discussions is that fuller disclosure will reduce malpractice litigation, because many patients will come to understand that their injury was not due to negligence, or will feel less anger towards a provider who deals with them honestly. Additionally, some patients who do sue may be willing to settle their claims for less money. However, two lines of research suggest that disclosure may also prompt some patients to sue: the vast majority of patients who sustain medical injury currently do not sue; and an important reason why aggrieved persons do not seek legal redress is that they fail to recognize their condition or attribute it to an external cause.
We modeled the litigation consequences of disclosure by combining existing data on the epidemiology of medical injuries and malpractice claims with expert opinion about likely patient reactions to disclosure. We used Monte Carlo simulations to incorporate uncertainty around the experts' judgments of the proportion of patients who would be prompted to sue and the proportion who would be deterred from suing.
The model computed a 5% chance that total claim volume would decrease or remain unchanged and a 95% chance that it would increase. The distribution also indicated a 60% chance that comprehensive disclosure of severe injuries would at least double the annual number of claims nationwide, and a 33% chance that volume would increase by threefold or more.
Under the assumption that average payments would not change, the model predicted a 6% chance that total direct costs of compensation would decrease or remain unchanged under routine disclosure and a 94% chance that they would increase. Under the assumption that disclosure reduced average payments by 40%, a net increase in costs remained more likely than a decrease or no change, and there was a 34% chance that costs would at least double.
We found that under nearly any set of assumptions, the chances that disclosure would decrease either the frequency or cost of malpractice litigation were remote. An increase in the number and costs of claims was highly likely. The key driver of the model's findings is the well-established fact that only a tiny proportion of seriously injured patients sue, creating a huge reservoir of potential claims. An e-print of the paper is available from the first or second author.
Keywords: malpractice, liability, medical, litigation, disclosure
JEL Classification: I19, K13, K41
Suggested Citation: Suggested Citation
Studdert, David M. and Gawande, Atul and Mello, Michelle M. and Brennan, Troyen A. and Wang, Y. Claire, Disclosure of Medical Injury to Patients: An Improbable Risk Management Strategy. Health Affairs, Vol. 26, pp. 215-226, 2007; U of Melbourne Legal Studies Research Paper No. 212. Available at SSRN: https://ssrn.com/abstract=956892