The Purpose of Malpractice Litigation - - - a starting point, not a complete solution

BMJ Reports on Risky Business Conference

Debate on Malpractice Litigation

The British Medical Journal reported today on a debate over the benefits of malpractice litigation at the Risky Business conference in London earlier this month.  Glasgow University Professor Shelia McLean argued that litigation creates secrecy and defensiveness, and preventes the open discussion necessary to learn from mistakes. Available to only a few who can afford lawyers, litigation precludes the collaboration necessary to prevent future mistakes.  (See http://www.bmj.com/content/341/bmj.c6703 or http://www.ncbi.nlm.nih.gov/sites/pubmed/21106631.)   Barrister James Badenoch contended that fear of litigation was the “principal driver of risk management and risk avoidance.” The cost of the proposed alternative no fault system is prohibitive.

 

Does Debate Miss the Point?

Whether these two positions are inconsistent seems to depend on whether litigation alone is supposed to eliminate bad medical care. Probably, both Badenoch and McLean would agree that litigation system provides an incentive to eliminate poor care. Probably, both would agree that:

• litigation has not yet accomplished that goal, and
• litigation alone is insufficient to solve the problem.  

This apparent disagreement over whether "litigation is a good method for dealing with medical malpractice" masks the real issue:

• How can we prevent patients from being harmed by medical malpractice? 

Additional Considerations

1. While "litigation alone" as a strategy has not solved the problem, alternate strategies without litigation have also failed. Studies have documented the failure of the available alternative approaches put forward by the patient safety movement. (See http://www.rethinkingpatientsafety.com/my-blog/2010/11/is-iatrogenic-injury-inevitable.html.)
2. We should not lightly toss aside a Constitutional right without a compelling reason. Those who want us to abandon our Sixth Amendment rights ought to show, at a minimum, that the benefits outweigh the cost. Where is the benefit to sacrificing this right? There is no basis for believing that sacrificing a constitutional right is likely to make patient care safer. In fact, the opposite is true. The most successful safety effort began with closed claims. 
3. Litigation was the first essential component of the most effective patient safety effort to date: the anesthesia closed claims project. That project began by examining closed medical malpractice claims. It devised strategies for preventing the harm to the patients. Without litigation, the most effective patient safety effort to date would not exist. There would be no starting point. 

Eliminating litigation would seem unwise for at least three reasons. 

The failure of litigation alone to solve the malpractice problem does not mean that litigation is not a part of a solution.

 The only successful attempt to solve the malpractice problem has been based on data from litigation.

Eliminating litigation infringes on a constitutional right. 

Medical Malpractice System: Provides Incentive and Starting Point

Medical malpractice litigation serves two purposes: it provides an incentive to fix the medical system, and the data that serves as the starting point for making repairs. Alone, medical malpractice litigation cannot fix problems in the healthcare system that the healthcare system does not want to acknowledge or fix. 

What do you think? Let us hear from you. 

Lee Tilson   rethinkingpatientsafety@gmail.com

Risky Business Conference Links

• http://www.risky-business.com/themes
• http://www.risky-business.com/events-live?date=2010-11-18
• November 17, 2010,  http://assets.videojuicer.net/riskybusiness/5e390344-edb1-11df-a78d-1231390c28d1.pdf
• November 18 & 19, 2010,  http://assets.videojuicer.net/riskybusiness/5e2fd29c-edb1-11df-af32-1231390c4211.pdf

 

What do you think?