There was an article in the New York Times recently about medical malpractice litigation and the impact on patient safety. Joanna Schwartz, a law professor at UCLA, highlighted new evidence that contradicts conventional wisdom that malpractice litigation compromises patient safety movement’s call for transparency; and contends that malpractice lawsuits actually increase patient safety. It is the openness and transparency promoted by patient safety advocates that appear to be influencing hospitals’ responses to litigation risk.
Ms. Schwartz came to her conclusions after surveying more than 400 people, that included those responsible for hospital risk management, claims management and quality improvement in health care centers around the country, in cooperation with the American Society of Health Care Risk Managers, and dozens more. Her sources confirmed that while hospitals historically took an adversarial and secretive approach to lawsuits and error, that has begun to change. In recent years, hospitals have become increasingly open with patients: over 80 percent of hospitals in her study have a policy of apologizing to patients when errors occur. And hospitals are more willing to discuss and learn from errors with hospital staff.
Related: New Study Debunks the 5 Myths of Medical Malpractice
What accounts for these changes? Several factors, including widespread laws requiring disclosure to patients and confidentiality protections for internal discussions of error. Hospitals have also found that disclosing errors to patients and offering early settlements reduces the costs and frequency of litigation. The study also shows that malpractice suits are playing an unexpected role in patient safety efforts. Over 95 percent of the hospitals in the study integrate information from lawsuits into patient safety efforts. And risk managers and patient-safety personnel overwhelmingly report that lawsuit data have proved useful in efforts to identify and address error. In addition, lawsuits can reveal previously unknown incidents of medical errors ” particularly diagnostic and treatment errors with delayed manifestations that other reporting systems are not designed to collect. Lawsuits can also reveal errors that should have been reported but were not ” medical providers notoriously underreport errors (although studies have shown that the threat of litigation is not responsible for this underreporting) and lawsuits may fill these gaps. Moreover, litigation discovery can unearth useful details about safety and quality concerns. Analyses of claim trends can reveal problematic procedures and departments, and closed litigation files can serve as rich teaching tools.
For example, confidential settlements from two of Edwards and Ragatz medical malpractice cases involving the improper prescribing of certain drugs (Reglan) were discussed in an insurance company bulletin to healthcare providers advising how to provide better care to patients and how to avoid future claims. Read about it here. So as Schwartz said so eloquently and truthfully – Medical-malpractice lawsuits do not have the harmful effects on patient safety that they are imagined to have ” and, in fact, they can do some good.