Are sued physicians better physicians?
Key Takeaways
The idea that the specter of malpractice liability can improve the quality of healthcare is called deterrence. Some experts hypothesize that physicians adapt to the threat of medical litigation by being more cognizant of their practice of medicine, with those who are sued proactively changing their approaches to clinical care thereafter.
Deterrence due to malpractice liability risk may occur through three mechanisms:
Malpractice claim payments result in financial hardship, including decreased salary for the physician and increased premiums for the healthcare organization
Because lawsuits are psychologically stressful, physicians try to avoid them.
Malpractice claims send informational signals that influence clinicians, healthcare facilities, insurers, and regulators to make changes to prevent harm
In theory, if deterrence works as suggested—with physicians actively striving to improve healthcare—then the risk of lawsuits should decrease. But, does it actually work? The reality is that the true effects of higher- or lower-quality healthcare on malpractice risk are difficult to tease out.
Is deterrence effective?
In a recent systematic review published in JAMA, researchers analyzed the evidence for deterrence as it relates to physicians. Specifically, they investigated whether the threat of malpractice liability translates to better healthcare quality and safety.
The researchers—led by Michelle M. Mello, JD, PhD, Department of Medicine, Stanford University School of Medicine, Stanford, CA—assessed 37 studies of obstetrical care outcomes, published between 1990 and 2019, that analyzed the link “between malpractice liability risk measures and health outcomes or structural and process indicators of health care quality.” Of note, due to variations in study designs, meta-analysis was not possible. Instead, the review results were descriptive and qualitative.
Exposures examined by Dr. Mello and colleagues included insurance premiums, frequency of paid claims, state tort reforms, mean claim payment, total malpractice payments, physician history of claims, immunity from liability, and the Centers for Medicare and Medicaid Services’ cost indices. Outcomes included avoidable admissions, hospital readmissions, patient mortality, cancer screening measures, prolonged length of stay, hospital/nursing home safety, adverse events, and patient satisfaction.
Dr. Mello and colleagues found that increased risk of malpractice liability was not associated with healthcare quality or safety in a hospital setting. Although some of the studies reviewed reported inconsistent associations, most exhibited no evidence of deterrence in spite of the three purported mechanisms.
One reason for these findings may involve medical error: “Some errors involve momentary or inadvertent lapses at the individual clinician level,” Dr. Mello and coauthors wrote.
“Although hospitals might be able to implement systems to identify such errors before they cause harm, other errors are not amenable to the kind of conscious precaution taking (at either the hospital or the physician level) on which the deterrence model relies,” they added.
Where serious errors occur
Although the focus of the study was obstetrical, the results may be more generally applicable, according to an accompanying editorial.
“The review by Mello et al primarily relates to hospitals and inpatient settings, where most serious errors of predominantly clinical origin tend to occur,” wrote authors William M. Sage, MD, School of Law and Dell Medical School, University of Texas, Austin, TX, and Kristen Underhill, JD, DPhil, School of Law and Mailman School of Public Health, Columbia University, New York, NY.
Aside from studies examining a link between obstetrical care and malpractice, liability research has historically offered few insights from other specialized practice areas. Not much corresponding data exist from outpatient settings or control groups representing no-liability.
Limitations
One notable limitation of this study is that it’s qualitative, with data extracted by two reviewers.
In their editorial, Drs. Sage and Underhill praised the JAMA study for “convincingly” addressing the research question set forth. However, the authors of the editorial brought up some valid concerns.
“The studies that Mello et al evaluated had examined the medical liability and health care systems that have been in place, not the liability and care systems that are needed going forward,” they noted.
“Future forms of healthcare financing, care delivery, and liability insurance may be different, and studies of malpractice liability will need to engage quality accordingly. Individual physicians working as small businesspeople who purchase their own malpractice insurance is a fading model for good reason. That model fails the basic tests of financial sustainability, responsible governance, and health system science,” they continued.
Drs. Sage and Underhill also noted that the studies evaluated in the systematic review were “causally ambiguous,” which limits the weight of the findings and what can be inferred. Specifically, it was unclear whether tort claims impacted clinician behavior or vice versa.
Ultimately, liability will not change physician behavior unless physicians believe that providing good care obviates litigation, argued Drs. Sage and Underhill.
But, previous researchers have shown that patients who were harmed in a negligent manner often never sue, whereas other patients with unmerited claims often do. Currently, physicians typically base their notions of tort liability on rumors, anecdotes, trends in insurance premiums, and political messages disseminated by special interests—not empiric study.