Kia Franklin

Medical Malpractice Reform

The Problem: preventable medical malpractice injuries and deaths are costly to the American public

Would people go to the hospital if they knew that the average patient should expect to be the victim of at least one medication error each day there? This figure, provided by a study from the Institute of Medicine, best illustrates the crisis in medical care.(1) Many patients and their families have lost trust in the American healthcare system because of an increase in medical errors.(2) It is time to restore American citizens’ faith in the healthcare system by implementing policies that will improve patient safety.

More and more serious injuries and deaths caused by medical errors are reported each year. In 1999, the Institute of Medicine reported that there were between 44,000 and 98,000 medical error injuries per year. Recently, the Institute for Healthcare Improvement reported that an astounding 40,000 “incidents of harm” happen to patients every day in American hospitals.(3) The 1.5 million medication errors that occur every year add $3.5 billion in medical costs to the medical system, and between $17 billion and $29 billion per year in total costs to society—including medical expenses, lost income, lost household productivity, and physical disability.(4) This is too costly to the economy, to Americans’ health and well-being, and to the public’s confidence in our health care system.

But rather than focusing on how to regain the public’s trust and improve patient safety, tort “reform” enthusiasts have derailed the discussion into a debate over rising medical malpractice premiums and the supposed need for measures to limit compensation for victims of medical errors. This is despite a growing body of evidence that malpractice lawsuits and malpractice insurance rates are, at best, tenuously linked.(5) The attack on Americans’ access to the courts in the guise of solving the nation’s health care problems has made confronting medical errors one of the premier civil justice challenges the nation faces.

Reducing medical errors is a desirable goal, but hospitals have few incentives to invest in increasing patient safety besides the threat of lawsuits. Litigation against hospitals and doctors for medical errors has led to improvements in “catheter replacement, drug prescriptions, hospital staffing levels, infection control, nursing home care and trauma care.”(6) Yet unyielding efforts for tort “reform” seek to reduce what little recourse patients have now. In turn, these rigorous measures to reduce compensation to injured patients or keep them out of public courts altogether weaken the impact of lawsuits as an incentive for hospitals to improve patient safety.

Patient safety can be achieved not by weakening the civil justice system, but by building upon its strengths with reforms that focus on patient safety, so that fewer patients will ever even need to enter a courtroom. Those concerned with patient safety must seek systematic methods for preventing medical errors and must fight to preserve patients’ right to go to court when doctors and medical staff are negligent. As contentious as the health care debate may be, all sides should agree that reducing medical errors is a desirable goal, and that reducing the number of lives lost and permanently changed by medical malpractice should be a national priority.

The Policy Proposal: Fund Electronic Medical Records and Patient Safety Programs

The prevalence of serious injuries and deaths linked to medical error is the crisis in medical care, not the lawsuits that sometimes arise from cases involving medical negligence allegations. Yet instead of focusing on improving patient safety, the misguided debate led by supporters of tort “reform” homes in on lawsuits and their tenuous connection to insurance premiums. This is the wrong approach. As Senators Hillary Clinton and Barack Obama point out in their co-authored article:

[I]f we are to find a fair and equitable solution to this complex problem, all parties—physicians, hospitals, insurers, and patients—must work together. Instead of focusing on a few areas of intense disagreement, such as the possibility of mandating caps on the financial damages awarded to patients, we believe that the discussion should center on a more fundamental issue: the need to improve patient safety...(7) (Emphasis added)

How can the next President work to improve patient safety? Reports like the Institute of Medicine’s publication, To Err is Human, and the Institute for Healthcare Improvement’s Protecting Five Million Lives campaign state that many, if not most, medical errors are related to unsafe procedures and systems “that lead people to make mistakes or fail to prevent them.”(8) So the next President should eschew hollow calls for tort “reform” and instead pursue common sense by establishing a national program that focuses on improving patient safety.

One step the next President should take to accomplish this is to allocate funding for electronic medical records and improved patient safety programs. Paper medical records are inferior to electronic records in a variety of ways that increase errors and reduce treatment effectiveness and efficiency.(9) The use of electronic medical records has been found to reduce medication errors by as much as 80 percent and some estimates have placed savings generated by the system at an eventual $81 billion a year.(10) Encouraging hospitals to improve patient safety systems will also reduce medical errors and improve communication between clients and medical caregivers. Incentives against disclosing medical errors have impeded progress in developing better patient safety systems. Providing funding will increase the incentive for hospitals to improve patient safety and encourage disclosure, which will inform the development of better patient safety programs.

The next President should:

1) Allocate federal funding to support the Department of Health and Human Services’ (HHS) Center for Quality Improvement and Patient Safety and the Patient Safety Task Force, which is charged with supporting the collection and dissemination of improved patient safety mechanisms.(11) This support will allow HHS to provide education, research, guidelines, and technical support to hospitals regarding Electronic Medical Records and Improved Patient Safety systems.

2) Allocate government funding and grants to develop Electronic Medical Records and Improved Patient Safety systems in hospitals across the country. Hospitals that are willing but unable to modernize their information technology could do so if they had the funding. The next President should champion legislation to create a federal funding program that encourages hospitals to invest in new electronic medical records and patient safety systems, by providing dollar-to-dollar funding to qualifying applicants, and full funding for the most dynamic proposals.

The federal government pays for 44 percent of the approximately $1.3 trillion spent each year on medical care costs.(12) By reducing medical errors and therefore its associated medical care costs, the government stands to gain significant savings from this program. More importantly, this policy emphasizes patient safety rather than reductive “reforms” that minimize injured patients’ legal rights to adequate compensation.

In turn, focusing on patient safety may also reduce costs associated with medical malpractice legal claims. Focusing on reducing medical errors and the injuries and deaths they cause will reduce the need for individuals to resort to the civil justice system.
The vast majority of claims made in the legal system against doctors and hospitals result from verifiable error and defense litigation costs in claims involving verifiable error are the source of the greatest expense in the system.(13)

One study concludes:

“An honest and forthright risk management policy that puts the patient's interests first may be relatively inexpensive because it allows avoidance of lawsuit preparation, litigation, court judgments, and settlements at trial.”(14)

It is enough of a burden to be in need of medical care. That so many Americans then must worry about injuries inflicted during treatment is unacceptable. Rather than reduce the remedies available to patients harmed while receiving medical care, the next President should prioritize restoring their faith in healthcare by pursuing legislation to improve patient safety systems.

(1) Kohn LT, Corrigan JM, Donaldson MS, eds. To err is human: building a safer health system. (Washington, D.C.: National Academy Press, 2000), available at
(2) Supra.
(3) See Kohn LT, Corrigan JM, Donaldson MS, eds., supra.; Institute for Healthcare Improvement, Protecting Five Million Lives, available at (“incident of harm” defined as: unintended physical injury resulting from or contributed to by medical care (including the absence of indicated medical treatment), that requires additional monitoring, treatment or hospitalization, or that results in death. Such injury is considered harm whether or not it is considered preventable, resulted from a medical error, or occurred within a hospital.)
(4) Report Brief: Preventing Medication Errors, 1-2, (The Institute of Medicine, July 2006), available at
(5) See, generally, The Great Medical Malpractice Hoax: NPDB Data Continue to Show. Medical Liability System Produces Rational Outcomes, 12, (Public Citizen, 2007); see also Jay Angoff, “Falling Claims and Rising Premiums in the Medical Malpractice Insurance Industry,” (Center for Justice and Democracy 2005) available at; Mythbuster: “Caps” Do Not Cause Insurance Rates to Drop (Center for Justice and Democracy), available at; Mythbuster: The Truth About Medical Malpractice Litigation (Center for Justice and Democracy), available at
(6) Meghan Mulligan and Emily Gottleib, Lifesavers: CJ&D’s Guide to Lawsuits that Protect Us All, Center for Justice & Democracy (2002). Available at
(7) Hillary Clinton and Barack Obama, Making Patient Safety the Centerpiece of Medical Liability Reform, New England Journal of Medicine, supra. (Emphasis added.)
(8) Kohn LT, Corrigan JM, Donaldson MS, eds., supra at 2.
(9) Supra.
(10) See Richard Hillestad, James Bigelow, et al., Can Electronic Medical Record Systems Transform Health Care? Potential Health Benefits, Savings, And Costs, available at
(11) See Statement of Center for Quality Improvement and Patient Safety Taskforce, available at
(12) See United States Core Health Indicators 2007, Word Health Organization, available at; David W Bates M.D. et al., A Proposal for Electronic Medical Records in U.S. Primary Care, 2, Journal of the American Medical Informatics Association, 2003, available at
(13) David M. Studdert, Michelle M. Mello, et al, Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, New England J. Med. (May 11, 2006).
(14) Steve S. Kraman, MD, and Ginny Hamm, JD, Risk Management: Extreme Honesty May Be the Best Policy, 131 Ann. Int. Med 12, 963-967 (Dec. 21, 1999) (Emphasis added); See also Michael Townes Watson, America’s Tunnel Vision—How Insurance Companies’ Propaganda Is Corrupting Medicine and Law, 372-376 (Horatio Press 2007).

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Posted at 4:00 PM, Nov 21, 2007 in Platform Report
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