There has been long and contentious debate over the role of medical malpractice liability in causing higher health spending. There has been less discussion about whether that liability achieves one of its supposed core purposes–the improvement of quality or at least a decrease in errors in diagnosis and treatment. New research published by the National Bureau of Economic Research explores this topic. (NBER Paper) The authors used quality measure data and malpractice systems in various states to examine the question. The quality measures included risk-adjusted inpatient mortality rates for certain medical conditions, avoidable hospitalization and cancer testing rates and adverse event rates for mothers in childbirth. They then attempt to link these to structural features of the malpractice liability system in particular states; features such as caps on damages or changes in the standards of practice to which physicians are held. In regard to quality measures, they find very small and statistically insignificant effects of structural malpractice features. For example, absence of a damages cap may be associated with a 2% decrease in inpatient mortality rates. The authors seem to believe that changes in the malpractice standard of care from a local one to national guidelines may have a more positive effect on quality through the malpractice system. But this change, if it exists, has nothing to do with malpractice liability, but instead with the expectations that payers and accreditation agencies have imposed upon providers to demonstrate that they follow guidelines and perform well on quality measures. The reimbursement and reputational consequences from these programs are far more meaningful to providers than is malpractice liability. Following these guidelines and doing well on quality measures may lessen malpractice liability, but that is not due to any structural feature of the malpractice system or the standard of care applied.
Bad outcomes will happen and sometimes they are not the fault of anyone or they occur even in the presence of good quality care. Practicing to a standard of care is relatively easy to define and measure in an era of exploding quality measures and care guidelines; poor execution in the delivery of the care is what we should care more about. Juries and judges have no ability to ascertain when a provider actually practiced poorly, and paid experts for either side have no credibility. It is fairly clear that malpractice liability can lead to more defensive medicine and hence more spending, and often more diagnostic tests and more treatments can themselves raise risks for patients. The current system generally only benefits lawyers and should be replaced by one in which credible independent medical experts ascertain the executional quality of care.