Merton, Vanessa

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Pace UniversityDigitalCommons@PacePace Law Faculty Publications School of Law3-1-1994Review of A Measure of Malpractice: MedicalInjury, Malpractice Litigation, and PatientCompensationVanessa MertonElisabeth Haub School of Law at Pace University, vmerton@law.pace.eduFollow this and additional works at: http://digitalcommons.pace.edu/lawfacultyPart of the Medical Jurisprudence CommonsThis Book Review is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in PaceLaw Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact cpittson@law.pace.edu.Recommended CitationVanessa Merton, Review of A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation, 120 AnnalsInternal Med. 444 (1994) (book review), http://digitalcommons.pace.edu/lawfaculty/308/.T H E  L I T E R A T U R E  O F  M E D I C I N E  Reviews and Notes Book, audiovistral programs, contputer programs, and other material reviewed and bnepy noted are selected by the Editors for their probable interest to readers o f  the jo~mol .  Not all items submitted for re- view are necessarily represented in this section. How- ever, a listing of all hook received for review can he foirttd in the adverti,sing section of each issue. A Measure of Malpractice: Medica l  Iqjury, Malpract ice Lit igation, and  Pat ient  Compensation Pau l  C. Wei ler ,  H o w a r d  H. Hiat t ,  Joseph P. Newhoose, W i l l i am G. Johnson, T r o y e n  A. Brennan, and  L u c i a n  L. Lcape. 175 pages. Cambridge, Massachusctts: H a w a r d  Un ive rs i t y  Press; 1993. $29.95 Undoubtedly this decade's most important book about med- ical negligence, A Measure of Malpmcrice provides a welcome antidote to the mythology and disinformation that has perme- ated most policy debate on the subject. This terse report, dense in  data but not in  style, summarizes in  surprising detail the monumental work o f  the Harvard Medical Practice Study- distilling into one slender book the obsrwations and analysis reported i n  fuller but mare fragmentary form in  various earlier publications. I t  should be required reading for every partici- pant in the health care reform effort. I n  1986, the New York State legislature commissioned an interdisciplinary team-physicians, attorneys, economists, stat- isticians, and social research experts-to diagnose the "crisis" of runaway professional liability insurance premiums. Their mission was to replace the anecdotal evidence so oRen bandied about wit11 systematic, empirical data that would support in- formed judgments about the viability of the present tort system and proposed alternatives. Beginning without preconceived preferences, the team quickly realized that, to paraphrase de Tocqueville on democracy, finding fault wi th the tort system is easy; what is difficult is identifying an alternative that, on balance, wi l l  do better. To this end, the team engaged in  a massive study o f  30 OM) randomly sampled records from 51 acute care nonpsychiatric hospitals, conducted 2500 patient interviews, surveyed 1WO physicians, and reviewed insurance company files for the al- most 70 000 claims o f  medical negligence filed in  New York over 14 years. Because sample bias is potentially a serious confounder in  such work, 1 wil l  note just one example that conveys the impressively representative quality of their sam- pling: Of the patients appropriate to interview about the finan- cial consequences of their in-hospital injuries, the team man- aged ta locate 90%. and o f  that group, 90% agreed to  be interviewed. A Meos~cre of Molproctice recounts the painstakingly exact methodology, replete wi th cross-validation and verification techniques, through which the study team developed an epi- demiology o f  medical injury, documented the extent o f  related patient lass, and examined the role o f  malpractice litigation in  injury compensation and prevention. The report is loaded with so much intriguing information that it is dif icuit to select even a few items to highlight. Probably the most startling finding is the extraordinarily high incidence o f  medical injury that can fairly be characterized as due to clinical negligence, and the correspondingly low rate o f  malpracticr claims filed. The study shows that about I% of  all hospitalized patients experience negligent medical injury. I n  I year in N c u  Y o l k ,  inuru than 13 000 fatalities and mors than 7UOO sevcre u i  perniiinrr~t di5- abilities could he allrihuted to in-hospital medic;!l ncslipence. B y  extrapolation. medicill negligence kills at I t  75 tJOt1 Americans annually, eclipsing the carnage of both thc ,\me+ can workplace (hIl(l0 to 10 OIKJ deaths per ye:ti-1 ;lad uhc Anlcr. ican highway (50 WO deaths per year). Physiciitns ciirvcycd lby the study team undcrestimatcd the incidence ut  rncdicaily caused morbidity and mortality by a factor (11' 10. Even mors counterintuitive for most physicians. I sospact. is the study tram's key finding that "while thc Icgal system doe5 in  fact operate erratically, i t  hardly opelates cxcesswcly. . . . [Wle found several times as many seriously disahicd patients who received no legal rcdrrss for their injury ;a\ innoucni doctors who bore the burdcn of defending ;ig.unst u n w ; ~ r i ~ i ~ l c i l  malpractice claims. Our data make clear. then, that the locus of legislative concern should he that the malprncricc systcm ir too inaccessible. rather than too :scccssihlc. l o  the victims of negligent medical trratmenl. '~ Only a small fraction o f  piitients who suffer disabling injury causcd hy  a lhr;tlth care pn,viilcr'\ negligence ever file a !malpractice c l am at all. irl alone receive any payment. For every 7.5 patients who incurred negligent injury, I malpractice claim was tiled; uae claim was paid ioi every 15 negligent injurica actually inHictcd lo  lhospitals. Thc report states that "the underlying ;issumption thal too m:my groundless malpractice suits are initiated is unfounded." This is all the more noteworthy because unlike those rnjurcd hy  other kinds of negligent conduct, rnalpradice claimants ia r r l r  obtain any compensation unless a lawsuit is filed; 90') of a11 money paid to malpractice victims is received after lltipotiun. compared with only about one third ut money i rcc iv rd  by automobile accident claimants. However, the report heartily endorses the general view thai the litigation process consumes far too much money relative to the amount that reaches deserving victims. I t  also concluder that a solid majority of the malpractice claims that ore filed are not valid-"false positivesw-albeit the rrsult rniiiu of a lack of medical information and understanding un the part of plain- tiffs and their lawyers than o f  meretricious motive. Alihough the team determined that the legal system oltimatcly dory an efficient job o f  filtering out these unfounded claims. they decry the economic and emotional cost to health care provider\ in- herent in that process. Can the virtues o f  the tort liability system bc prcscrvsd while its problems are solved? I n  the end, the stoily team thinks not. They recommend scrapping the tort system lor a different approach to the twin challenges o f  providing fair compensation for past injury and encouraging prevention of future injury. Their candidate: a "no-fault" scheme. an:ilogous to workers' compensation, that would pay solely out-of-pocket expenses and lost earninga-nothing for pain. fear.  loss irf enjoyment of life, or lass of function (except limited vayrnrnih for a few specified impairments). The scheme would uovcr only patients who suffer longer-term injuries for costs not othewise reimbursed by  insurance. I n  a version o f  the " s n ~  terprise liability" now supposedly favored by  the Presidential task force on health care reform. hospitals wciuld cover thc patients of any physician they admit to piivileges. even for out-of-hospital adverse events. As a matter of political feasibility, the i-escarchrrs snggcst gradual implementation o f  this scheme rrn an "elective" hasis. On admission. hospital patients would be offered t i i t  option of the "administrative compensation systcm" in lieu of their rights under cummon-law tort liability. (The icpoi t  dour: not 444 1 March 1994 . A,?nalr of inrental Medicine . Volume 120 . Number 5 .lqap qaqx u! ale uaxsLs ale3 qlieaq ialxaq e aas ox luem oqm [[a 'xeqt 104 .paleraua% aAeq Laq) eiep aql jo i(l!l!~n pue &![enb aql ql!m lallenb ueJ auoLoe ~ o q  aas ol pleq s! I! 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