The fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment. Amitabh Chandra — a Harvard economist whose research is cited by both the American Medical Association and the trial lawyers’ association — says $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate. If a new policy could eliminate close to that much waste without causing other problems, it would be a no-brainer.
At the same time, though, the current system appears to treat actual malpractice too lightly. Trials may get a lot of attention, but they are the exception. Far more common are errors that never lead to any action.
After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim.
Medical errors happen more frequently here than in other rich countries, as the Robert Wood Johnson Foundation recently found. Only a tiny share of victims receive compensation. Among those who do, the awards vary from the lavish to the minimal. And even though the system treats most victims poorly, notes Michelle Mello of the School of Public Health at Harvard, “the uncertainty leads to defensive behavior by physicians that generates more costs for everyone.”
So the most promising fixes are the ones that don’t treat the malpractice system as an isolated issue.
Imagine if the government paid for more research into which treatments really do make people healthier — a step many doctors don’t like. Such evidence-based medicine could then get the benefit of the doubt in court. The research would also make it easier to set up “health courts,” with expedited case schedules and expert judges, which many doctors advocate.
Similarly, you would want to see more serious efforts to reduce medical error and tougher discipline for doctors who made repeated errors — in exchange for a less confrontational, less costly process for those doctors who, like all of us, sometimes make mistakes.
A grand compromise along these lines may be unlikely. But it’s a lot more consistent with the evidence than narrower ideas. The goal, remember, isn’t just to reduce malpractice lawsuits. It’s also to reduce malpractice.
Makes sense to me.