Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries

23 Pages Posted: 7 Jul 2007

See all articles by Michelle M. Mello

Michelle M. Mello

Stanford Law School; Department of Medicine

David M. Studdert

University of Melbourne - Faculty of Law & Faculty of Medicine, Dentistry and Health Sciences

Abstract

Medical malpractice litigation and its doctrinal substructure are heavily oriented toward holding individuals, not health care organizations, liable for medical injuries. In contrast, the emerging science of patient safety emphasizes the role of "system failures" in causing injuries, rejecting simple characterizations of error as individual physicians' carelessness or incompetence. In this Article, we examine new evidence about the nature of the relationship between individual and system factors in the production of medical injury, and consider its salience for tort doctrine's conventional view of injury causation. The evidence comes from an analysis of 1,452 closed malpractice claims from five liability insurers across the country. We highlight three key findings. First, the causality of medical injuries is multifactorial and weblike. Second, in analyzing the complex causality that typifies medical injuries, it is difficult to cleanly separate individuals and their failures from the larger environments or systems in which they work. Finally, the pattern of etiologic factors identified suggests that the most promising opportunities for injury prevention lie at the organizational level. Each of these empirical findings is at odds with conceptions of medical error and safety promotion in tort law. The findings suggest the need to expand the possibilities for corporate or enterprise liability in medical malpractice law in order to successfully target the tort deterrent signal.

Keywords: malpractice, liability, medical, deterrence, patient safety

JEL Classification: I1, K13

Suggested Citation

Mello, Michelle M. and Studdert, David M., Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries. Georgetown Law Journal, Forthcoming, 2nd Annual Conference on Empirical Legal Studies Paper, Available at SSRN: https://ssrn.com/abstract=998574

Michelle M. Mello (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-725-3894 (Phone)

HOME PAGE: http://https://law.stanford.edu/directory/michelle-m-mello/

Department of Medicine ( email )

Center for Health Policy / PCOR
Encina Commons
Stanford, CA 94305
United States

HOME PAGE: http://https://profiles.stanford.edu/michelle-mello?tab=bio

David M. Studdert

University of Melbourne - Faculty of Law & Faculty of Medicine, Dentistry and Health Sciences ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

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