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  • pg 1
									                                                                                                                     Vol. IX, No. 8
                                                                                                                   December 2006

                                        issue brief
                                        Medical Malpractice: Strengthening
                                        the Evidence Base
                                        For decades, the myriad issues associated with      not investigated by the researchers. These
                                        medical malpractice have been hotly debated         disagreements are enhanced because there
                                        by advocates, researchers, and policymak-           is limited consensus in the research on the
                                        ers alike. Historically, legislative efforts have   underlying factors driving the various mal-
                                        focused primarily on tort reform and insur-         practice problems. The contentious nature of
                                        ance regulation. More recent proposals have         the malpractice debate has resulted in vague
                                        begun to explore alternative policy approaches      policy goals, misinterpretations of findings,
                                        such as apology-compensation programs,              and the selective use of research with ques-
                                        health courts, and patient safety initiatives.      tionable conclusions.

                                        Despite continued attention, most policy pro-       In order to provide policymakers with credible
                                        posals are based on research findings facing        evidence required to develop policy reforms that
                                        the same drawbacks—data limitations and             can address clearly identified malpractice prob-
                                        disparate methodologies. Missing and inac-          lems, researchers need better data and more rig-
                                        curate data and poorly designed studies lead        orous methodologies. The Robert Wood Johnson
                                        to inconsistent findings, which have made the       Foundation, under its Changes in Health Care
                                        malpractice debate vulnerable to exaggerated        Financing and Organization (HCFO) initiative,
                                        and invalid claims and ideological rhetoric.        conducted a small invitational meeting to provide
                                                                                            an opportunity for researchers and other stake-
                                        The other significant barrier to successful mal-    holders to take a closer look at malpractice stud-
                                        practice reform is the failure of researchers and   ies and to discuss why findings diverge, where
                                        policymakers to be clear about which malprac-       there may be common ground, and how to over-
                                        tice problem they are trying to address, since      come current research limitations.
                                        different problems can require very different
                                        solutions. Malpractice problems most often iden-    In an off-the-record, facilitated discussion, par-
                                        tified include high malpractice insurance rates,    ticipants reviewed the state of the evidence and
                                        reduced physician supply, defensive medicine,       explored whether and how research results sup-
                                        increased overall health care costs, invalid law-   port or call into question a variety of proposed
                                        suits, lack of compensation for injured patients,   policy solutions. The session was a positive step
                                        and patient safety.                                 toward understanding the strengths and weak-
                                                                                            nesses of the underlying evidence in order to
                                        Confusion about malpractice problems creates        help policymakers as they develop workable mal-
AcademyHealth is the national program   an environment where research findings can          practice reforms.
office for HCFO, an initiative of
the Robert Wood Johnson Foundation.
                                        be misinterpreted to support policy solutions
         issue brief — C h a n g e s i n H e a lth Financing & Organization                                                                                      page 2

         Background on the Medical                            specific side of the debate. Experts agree that     Information on jury awards is also problematic
         Malpractice Process                                  conducting malpractice research is exceed-          and limited. Jury verdict reporters, a primary
         The vast majority of patients injured by medi-       ingly difficult due to limitations in the avail-    source for verdict information, can contain sig-
         cal care do not seek compensation. Research          able data and an existing library of studies        nificant inaccuracies, and may be more likely to
         estimates that approximately 2 percent of            that lack methodological rigor.                     include large verdict awards than small verdict
         patients injured by medical malpractice pursue                                                           awards.7 Other sources such as the RAND
         legal recourse.1, 2 Medical malpractice litigation   One major problem with many studies is              Institute for Civil Justice Jury Verdict Database
         is primarily governed by state law. While legal      that they tend to compare states with differ-       and the Civil Justice Survey of State Courts
         procedures vary from state to state, the overall     ent legal environments without controlling          collect information on court verdicts, but they
         process for adjudicating a malpractice claim is      for other ways in which states may differ.          do not track cases in every county, making it
         consistent across the country. When an injury        Additionally, missing information from spe-         difficult to develop generalizable conclusions.
         occurs and the patient or family decides to pur-     cific groups of physicians, settings, and/or        Some researchers question the usefulness of
         sue legal action, their lawyer files a claim with    regions can lead to invalid or over generalized     jury verdict data because very few cases make it
         the court against the provider who in turn noti-     findings. Recognizing and addressing the            to verdict and often the initial amount awarded
         fies the malpractice insurance carrier.              weaknesses in data and methodologies most           is not final.
                                                              commonly used in malpractice research will
         The discovery phase, which can last several          improve efforts to generate new and more            The richest data on malpractice claims and
         years, follows with an exchange of informa-          sophisticated studies and provide more reli-        the injuries that led to them are collected by
         tion between the plaintiff and defendant,            able support for policy reforms.                    insurance companies for business purposes.
         including expert opinions. There are several                                                             Unfortunately, they are rarely accessible to
         opportunities for a claim to be resolved prior       Limitations in Data Accuracy and                    researchers. States require insurers to publicly
         to trial. Resolution can occur through media-        Availability                                        report a limited amount of claims information,
         tion or arbitration, dismissal or summary            In general, much of the most pertinent              but data from a growing market of self-insured
         judgment by the court, or early settlement           information needed to examine the sever-            and physician owned-and-operated mutual
         between the plaintiff and defendant. If the          ity, frequency, and causes of malpractice           companies may not be captured because these
         claim moves to trial it will be decided by           losses at state-specific levels is not collected.   organizations are not held to the same report-
         either a judge or, more commonly, a jury.            Examples of helpful data not currently avail-       ing requirements as commercial malpractice
                                                              able include the insured amounts covered            insurers. For example, a data source like the
         A trial can motivate the parties to reach a          by premiums and breakdowns of paid losses           NAIC databank, which primarily collects infor-
         settlement, or may result in a verdict for the       due to settlement and trail verdicts and eco-       mation for financial purposes, excludes infor-
         defendant or for the plaintiff, with the latter      nomic and noneconomic damages. Available            mation from self-insured groups.
         accompanied by an award of economic and/or           data include closed-claims, insurance com-
         non-economic damages. A jury award may be            pany information, jury awards, physician            Limitations in Methodologies
         amended by the court in some cases, especially       surveys, and patient medical records.               and Standardizations
         if it is very large. It may also be overturned if                                                        Further complicating sound research is the lack
         the defendant wins an appeal in a higher court.      Existing databases often suffer from short-         of standardization of databases and variations
                                                              comings in completeness and accuracy.               in study methodologies making it difficult to
         A malpractice claim takes an average of              For example, researchers have reported              compare one study to another. Comparing data
         four to five years to resolve, with the most         that most closed-claims databases have              across states and between data sources is dif-
         difficult cases taking significantly longer.3        significant limitations. The Government             ficult since there is no standardized definition
         Approximately 50 percent of all claims are           Accountability Office found that the National       for events like injuries, claims, and settlements.
         paid.4 In addition to any potential award, a         Practitioner Data Bank (NPDB), purportedly          Researchers also face difficulties analyzing
         significant amount of additional costs are           one of the better sources for malpractice           the impact of changing laws and regulations.
         incurred in the form of litigation expenses.         data due to federal mandates that require           For example, establishing the effect of a tort
         High administrative costs for carriers general-      reporting of adverse actions and malpractice        reform is complicated since the date a law is
         ly mean that only 40 cents of every dollar paid      payments, suffers from underreporting of            put into place often does not create an immedi-
         in malpractice insurance premiums goes to            claims, exclusion of institutional providers,       ate reaction. Rather, insurance adjustors and
         the patient.5 Long resolution time, variation in     and omission of legal and administrative            physicians may respond to a new reform only
         awards, unpredictable returns on investment,         costs associated with claims.6 Some states          after a test case is resolved by the highest court.
         and the insurance cycle are some of the fac-         also collect closed-claim data, but variations      Changes in common law, which is not written
         tors that make it extremely difficult to predict     in reporting requirements, definitions,             into statute, can make significant differences
         and stabilize premium rates.                         and quality standards frustrate aggrega-            on malpractice cases and are seldom assessed
                                                              tion of data across states and complicate           since they are difficult to track.
         Research on Medical Malpractice                      interstate comparisons. Other closed-claim
         is Challenging                                       data sources that are not publicly available        Different methodological approaches also can
         The challenges associated with medical               include the Physician Insurers Association          result in disparate findings. For example, dif-
         malpractice research make it vulnerable              of America (PIAA) Data Sharing Project              ferent approaches are often taken to measure
         to unreliable, exaggerated, or misleading            and the National Association of Insurance           the effect of malpractice on defensive medicine.
         conclusions that are often used to support a         Commissioners (NAIC) Special Survey.                One study that surveys doctors to determine

HCFO Issue Brief Malpractice fin2 2                                                                                                                           1/30/07 3:45:14 PM
         issue brief — C h a n g e s i n H e a lth Financing & Organization                                                                                      page 3

         their motivation for performing certain proce-         Premiums are sensitive to returns on finan-           Strategies researchers can take to improve the
         dures will likely differ from another study that       cial investments AND reward size.                     quality of information in the public domain
         reviews patient medical records to determine if                                                              include promoting generally accepted research
         services rendered were medically necessary. Due        Mello’s review found that caps on non-eco-            principles and holding others accountable for
         to the limitations of any single study, it is essen-   nomic damages reduce award size but do not            following these principles. One way policymak-
         tial to consider multiple studies with different       affect claims frequency. Caps induce a modest         ers who use this information can be better
         approaches to ensure a comprehensive body of           decrease in premium growth and slight increase        informed about the quality of the research is if
         reliable evidence.                                     in physician supply but disproportionately bur-       a score for quantitative policy research were for-
                                                                den the most severely injured patients. Though        mulated based on research principles and other
         Consensus on Findings                                  caps on awards can take some pressure off             key attributes.
         One strategy to differentiate reliable studies has     physicians by reducing premium growth, it is
         been to critically evaluate and summarize the          uncertain whether savings generated from tort         Some are worried that no matter how good the
         current body of research on medical malprac-           reforms have any effect on total health care          data or how much consensus is formed, there
         tice.8, 9 The Synthesis Project at the Robert Wood     costs. Other state tort reforms, including attor-     will never be a compromise between special
         Johnson Foundation (RWJF) recently focused on          ney contingency-fee reforms, collateral-source        interests on each side of the debate. While there
         medical malpractice. Researcher, Michelle Mello,       rule reforms, and pre-trail screening panels, had     are very different opinions on medical mal-
         J.D., Ph.D. of Harvard University assessed an          no significant impact.                                practice, a concerted effort to improve the data,
         array of peer-reviewed studies as part of RWJF’s                                                             ensure rigorous methodologies, and clarify the
         synthesis. She examined research on the causes         Alternative Approaches to Reform                      problem specific reforms are able to address
         of the malpractice crises, its effect on health care   A host of alternative reform approaches are           can make a significant contribution to inform-
         delivery and costs, and the impact of state tort       being explored by researchers who are rede-           ing the debate and moving closer to a workable,
         reforms. The synthesis clarifies which topics lack     fining the malpractice problem. Several of            effective solution. Despite the hesitancy of many
         enough support to draw valid conclusions and           these reforms include administrative courts           researchers to get involved in a contentious
         corrects some widely held assumptions. Mello           or health courts, full disclosure programs,           political debate, many policymakers and scholars
         found that:                                            and patient safety initiatives. Health courts         recognize the value of additional independent
                                                                would use judges with health care expertise           voices. Researchers are in an optimal position to
         u     There are no reliable estimates of the           and expert witnesses to adjudicate malpractice        distinguish between reliable and unreliable stud-
               national costs of defensive medicine.            claims.10 A schedule of damages would be              ies, educate policymakers on where there is con-
                                                                established to guide reward allocation. Full          sensus in the evidence, and clarify how different
         u     Rising claims costs are driven by an             disclosure and “early offer” programs sup-            policy options can fulfill a policy goal.
               increase in average payouts. The number          port doctors who apologize for medical errors
               of filed claims has stayed stable.               and offer compensation to families.11,12 Full         Recommendations
                                                                disclosure programs have been implemented             Researchers need high quality malpractice
         u     The strongest studies suggest that the           in several hospital systems including those           data that are complete, accurate, standard-
               malpractice crisis has little or no effect       in Illinois, Michigan, and Minnesota. Many            ized, and comprehensive in order to produce
               on physician supply. No solid evidence           patient safety initiatives have begun to focus        superior research that accurately represents
               has found that access to high-risk ser-          on fixing organizational systems and facilitat-       the causes and effects of medical malpractice.
               vices has declined.                              ing physician action.13,14 One example of a suc-      This requires an investment in establishing
                                                                cessful patient safety initiative is the collective   guidelines and practices that either create or
         u     There is very limited evidence that the          physician efforts of anesthesiologists in the         augment data collection systems that can be
               medical liability system deters negligent        mid-1980s to successfully reduce medical              used for cross regional and interstate analysis.
               care. Instead, the current system has per-       injuries and deaths.15                                Researchers should also meticulously con-
               verse effects on patient safety initiatives.                                                           sider and acknowledge their assumptions and
                                                                Role of Researchers                                   the strengths and weaknesses of their data
         Mello examined studies that analyzed a host            How researchers can most effectively address          and methodological approaches. In the face of
         of tort reforms and insurance regulations              the “noise” that surrounds the medical mal-           such varying quality in the data and research,
         introduced to address less affordable and              practice debate remains an important ques-            researchers can facilitate the responsible
         less available malpractice insurance. Many of          tion. A critical starting point is better access      use of high quality, peer-reviewed findings
         these reforms are intended to address very             to pertinent, accurate, and complete data.            through increased participation in the educa-
         different underlying causes for the increased          While there will never be a perfect dataset,          tion of policymakers.
         costs associated with malpractice. Parties in          improvements are possible. Researchers can
         the debate argue that premium growth is                highlight limitations of existing data and,           There exists a great deal of confusion about
         due to either an increased number of claims            when possible, advocate that more states              the goals of tort, insurance, and patient safety
         and higher awards OR insurance cycles that             collect essential claims level data and make          reform. It is important for researchers and poli-
         fluctuate based on investment returns and              it publicly available. It is also necessary to        cymakers to clarify what goals different reforms
         pricing decisions. Evidence gathered by Mello          ensure accurate data through audits, a very           are meant to accomplish. Many policy goals
         suggests that both arguments have merit.               labor intensive activity.                             focus on the overall cost of the malpractice sys-

HCFO Issue Brief Malpractice fin3 3                                                                                                                           1/30/07 3:45:16 PM
     issue brief — C h a n g e s i n H e a l t h Financing & Organization                                                                                                             page 4

       tem and how to lower these costs. Some goals                   3   Studdert, D.M., et al. “Claims, Errors, and               10   Mello, M.M., et al. “’Health courts’ and accountability
                                                                          Compensation Payments in Medical Malpractice                   for patient safety,” Milbank Quarterly, Vol. 84, No. 3,
       focus on identifying a better system to com-
                                                                          Litigation,” New England Journal of Medicine, Vol. 354,        2006, pp. 459-92.
       pensate individuals injured by adverse medi-                       No. 19, 2006, pp. 2024-33.
       cal events, while others try to improve patient                                                                              11   O’Connell, J. “Offers That Can’t be Refused:
       safety and reduce medical errors. Whatever the                 4   ibid.                                                          Foreclosure of Personal Injury Claims by Defendants’
                                                                                                                                         Prompt Tender of Claimants’ Net Economic Losses,”
       objective, researchers and policymakers should                                                                                    Northwest University Law Review, Vol. 77, 1982, pp.
                                                                      5   Danzon, P.M. “Liability for Medical Malpractice,” In:
       be clear and specific about the problems they                      Culyer AJ, Newhouse JP, eds. Handbook of Health                589-632.
       are addressing and the goals of the interven-                      Economics. New York: Elsevier, 2000.
                                                                                                                                    12   “COPIC’s 3Rs Program: A Success Story,” COPIC
       tions they are discussing. Finally, the national
                                                                      6   ibid.                                                          Insurance 3Rs Program Newsletter, Vol. 3, No. 1, June
       research agenda needs to include targeted dem-                                                                                    2006. Also see: http://www.callcopic.com/resources/
       onstrations and evaluations to test the effective-             7   Medical Malpractice: Implications of Rising
       ness of different approaches.                                      Premiums on Access to Health Care, Report GAO-
                                                                          03-836. Washington, DC: Government Accountability
                                                                          Office, August 2003. (no author given) Also see:          13   Kohn, L.T., J.M. Corrigan and M.S. Donaldson, eds.
       About the Author                                                   http://www.gao.gov/new.items/d03836.pdf.                       To err is human: building a safer health system.
       Christal Stone is an associate with the HCFO                                                                                      Washington, DC: National Academy Press, 2000.
       initiative. She can be reached at 202.292.6700                 8   Mello, M.M. “Medical Malpractice: Impact of the
                                                                          Crisis and Effect of State Tort Reforms,” Robert          14   Schoenbaum, S.C. and R.R. Bovbjerg. “Malpractice
       or christal.stone@academyhealth.org.                                                                                              Reform Must Include Steps to Prevent Medical
                                                                          Wood Johnson Foundation, Research Synthesis
                                                                          Report No. 10, May 2006. Also see: http://www.rwjf.            Injury,” Annals of Internal Medicine, Vol. 140, No. 1,
       Endnotes                                                           org/publications/synthesis/reports_and_briefs/pdf/             January 6, 2004, pp. 51-53.
        1   Localio A.R., et al. ”Relation between Malpractice            no10_researchreport.pdf.
            Claims and Adverse Events Due to Negligence.                                                                            15   Cheney F.W. “The American Society of
            Results of the Harvard Medical Practice Study III,”       9   Bovbjerg, R.R. and R.A. Berenson. “Surmounting                 Anesthesiologists Closed Claims Project: What Have
            New England Journal of Medicine, Vol. 325, No. 4, 1991,       Myths and Mindsets in Medical Malpractice,” The                We Learned, How Has It Affected Practice, and How
            pp. 245-51.                                                   Urban Institute, October 2005. Also see: http://www.           Will It Affect Practice in the Future?” Anesthesiology,
                                                                          urban.org/UploadedPDF/411227_medical_malprac-                  Vol. 91, No. 2, August 1999, pp. 552-556.
       2    Studdert, D.M., et al. “Negligent Care and Malpractice        tice.pdf.
            Claiming Behavior in Utah and Colorado,” Medical
            Care, Vol. 38, No. 3, 2000, pp. 250-60.

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