There are a number of good articles on the topic of medical malpractice in the September issue of Health Affairs. Here is my very quick synopsis of four of them and how they fit together. Michelle Mello, Amitabh Chandra, Atul Guwande, and David Studdert make a valiant attempt at quantifying the national costs of the medical liability system. They put a price tag on malpractice claim and settlement payments, administrative expenses (i.e., lawyers), and defensive medicine costs. Defensive medicine contributed the bulk ($45.6 billion) of a total $55.6 billion. That’s a significant amount of money in absolute terms, but it actually represents just 2.4 percent of national health expenditures. Granted, the team based their calculations on assumptions, but they are transparent about what those assumptions were, and they present a range of estimates under differing assumptions. This estimate represents the middle of the road.
If we could cut that amount in half through tort reform, we’d be doing well, right? After all, reform can’t eliminate negligence or accidents. That’s exactly why William Thomas and colleagues report that tort reform would likely reduce national health care spending by a little less than 1 percent.
A better approach might be to implement some common sense policies, like surgical safety checklists, which, according to an article by Marcus Semel and colleagues would actually save hospitals a substantial amount of money. The authors estimate the implementation of a checklist system to cost $12,635 dollars, and to cost $11 each time it is used (mostly because of preventive antibiotic use). The cost of a major surgical complication averages $13,372 though, and happens in about 3% of the 4,000 or so non-cardiac inpatient operations an average hospital performs each year. Assuming that the checklist reduces major complications by 10% (by some accounts a very conservative estimate), using the checklist would save the average hospital almost $104,000 a year–and patients would benefit from it, too. What are we waiting for?
The biggest obstacle seems to be physicians’ fear of the unknown, coupled with a lack of control, which leads to gross overestimation of the probability of facing a malpractice suit. Doctors are more worried about being sued than the data suggests they ought to be. It seems likely that this drives the bulk of defensive medicine in practice, and short of granting physicians immunity, it’s unclear how tort reform may be able to alter this thinking.
I have to say, looking at these studies collectively, I think we need to focus our cost-saving efforts somewhere other than tort reform.