The Effects of Malpractice Liability

By August 7, 2019 Commentary

Allowing patients to sue for alleged medical treatment negligence is supposed to encourage physicians to practice better medicine and to compensate for harm caused by such negligence.  In reality, these suits have generally enriched attorneys while causing physicians to stop practicing in certain areas and have raised health care costs through the practice of defensive medicine.   In response to these issues, a number of states have enacted laws to limit malpractice suits and the damages collected in them.  There is a  large body of research on the topic of the impact of those reform laws.  Health Services Research carries a systematic review of this research.  (HSR Article)  The authors sought to identify only high-quality research and found 37 studies that met their criteria.  The studies typically evaluated caps on damages and limits on joint and several liability and used as outcomes health care utilization, physician supply and quality of care.  Of the studies which analyzed the effect of non-economic or punitive damage caps on utilization, several found a decrease in what might be considered defensive medicine and a couple found an increase in risky, but potentially beneficial, procedures which might have been avoided for liability concerns.  Other studies found no effect on defensive medicine.  Of the studies looking at elimination of the collateral source damages rule, most found no effect from its elimination.  Barring joint and several liability similarly appeared to have limited if any impact on defensive medicine use.  In terms of health spending, the research also showed mixed results, with some studies finding reduced spending and others no change.  Of the studies which attempted to ascertain whether malpractice reforms affected quality, most showed no difference, although a few indicated some limited decline in isolated quality measures and a couple of studies found an improvement in certain quality scores.  The research evaluating the effect on physician supply indicated, as you might expect, that malpractice reforms had a positive effect on that supply, with the largest effect potentially being seen for high-risk specialties.  While this is a particularly difficult area of research, with cause and effect hidden in a forest of variables, it seems to me that malpractice liability does little for anyone but lawyers and that is does raise costs and limit physician supply.  So putting the malpractice lawyers out of business is probably a good idea.

Kevin Roche

Author Kevin Roche

The Healthy Skeptic is a website about the health care system, and is written by Kevin Roche, who has many years of experience working in the health industry through Roche Consulting, LLC. Mr. Roche is available to assist health care companies through consulting arrangements and may be reached at khroche@healthy-skeptic.com.

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