Protecting Patients' Rights

The Health Care Debate

The reform of the country’s health care system remains a controversial debate for Congress and the administration. Much of this discussion focuses on the cost of health care and the driving factors behind it. In that context, some have demanded restrictions on patients’ rights to hold negligent healthcare providers accountable, but have refused to pay attention to reducing and eliminating preventable medical errors. A large body of research now indicates that many of the common perceptions about medical negligence are little more than myths. This report analyzes the most recent empirical work on medical negligence to better understand the challenges facing the health care system.

Preventable Medical Errors – The Sixth Biggest Killer in America

According to the Institute of Medicine, preventable medical errors kill as many as 98,000 Americans every year, and injure countless more. If the Centers for Disease Control (CDC) were to include preventable medical errors as a category, it would be the sixth leading cause of death in America. Yet despite this, much of the medical negligence policy debate has revolved around indirect factors, such as doctors’ insurance premiums. Any discussion of medical negligence that does not involve preventable medical errors ignores the fundamental problem. Preventing medical errors will dramatically lower health care costs, reduce doctors’ insurance premiums, and protect the health and well-being of patients.

An Epidemic of Negligence, Not Lawsuits

Despite the shocking number of medical errors, few injured patients ever file a medical negligence lawsuit, and fewer still file frivolous claims. Research shows almost all medical negligence claims are meritorious. Claims where there was no error are rarely paid and researchers have concluded the reverse – errors which are never compensated – is a far bigger problem. The reality is, as University of Pennsylvania law professor Tom Baker puts it, “We have an epidemic of medical malpractice, not of malpractice lawsuits.”

Patients Want Accountability

Far from looking for a jackpot, research shows that patients file claims because they are seeking accountability. Too often patients injured by preventable medical errors are left in the dark about what happened to them. The majority of patients who experience medical errors are not told by their doctor. Nearly one half of the nation’s doctors admit to not reporting incompetence or medical errors. On the other hand, hospitals and health systems that have embraced full disclosure of medical errors to patients have found the number of medical negligence claims and their related costs decline.

Better Patient Safety is Key to Lower Health Care Costs

The rising cost of health care just intensifies the need to focus on preventable medical errors and their huge associated costs. The savings from preventing medical errors run into billions of dollars. The savings from restricting patients’ access to justice, however, are negligible. Medical negligence costs amount to less than two percent of health care spending, and government economists estimate restricting all patients’ compensation would only lower health care costs by less than one-half of one percent or less. Preventative reforms that focus more on the medical industry rather than the legal system are a key part of any effort to making health care more affordable and accessible.

Medical Negligence “Reform” Just Fills Insurance Company Coffers

Limiting patients’ rights does nothing but fill the coffers of malpractice insurance companies. A large body of research has shown that claims have remained stable for decades, while insurance companies have drastically raised physician premiums to build huge surpluses. States which have enacted caps on damages have seen hospitals and malpractice insurance companies make tens of millions of dollars but not cut the prices they charge patients and health insurers. Meanwhile, the cost of health care continues to rise at near-record levels.

Doctors Are Not Fleeing

The most frequently echoed myth concerning medical negligence is the notion that doctors are fleeing states and retiring early, creating physician shortages. Anecdotal accounts of doctors fleeing states in response to increased insurance premiums have proved to be either unrepresentative isolated events, or flat out false. In fact, data from the American Medical Association (AMA) show that physician numbers have been increasing across the board for many years. Not only are there record numbers of physicians in the U.S., the increase has also significantly outpaced population growth. There are now twice as many physicians per 100,000 population as there were when the AMA began tracking figures in the 1960s.

The number of physicians per 100,000 population is significantly higher in states without caps. This fact is supported by a large body of research that has found physician supply is not connected to insurance premiums. Researchers at the National Bureau of Economic Research (NBER) concluded, “The arguments that state tort reforms will avert local physician shortages or lead to greater efficiencies in care are not supported by our findings.”

The Civil Justice System Makes Us Safer

Every profession has its bad apples and physicians are no exception. Just six percent of doctors are responsible for nearly 60 percent of all medical negligence, and the civil justice system is the only effective means for holding them accountable. Other disciplinary mechanisms are woefully inadequate. State medical boards, for instance, are supposed to discipline doctors who consistently violate standards of care. Yet two-thirds of doctors who make 10 or more medical negligence payments are never disciplined at all. Hospitals are on the front lines of patient safety, yet nearly half of all U.S. hospitals have never reported a disciplinary action to the National Practitioner Databank since its creation in 1990. Alternative compensation systems, such as health courts, propose eliminating or greatly sidelining disciplinary systems altogether.

The civil justice system holds doctors, hospitals and insurance companies accountable. It is this accountability that drives the development of patient safety systems that help prevent negligence before it occurs. Hospitals, health systems and even entire medical fields have reformed dangerous practices because of the civil justice system. Without the accountability the civil justice system enforces, patient safety will suffer and health care costs will go up for everyone.


Excerpted from: Medical Negligence: The Role of America’s Civil Justice System in Protecting Patients’ Rights. published by American Association for Justice.