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A N D M E D I C A L L I A B I L I T Y:
DECEMBER 2014
A M E R I C A N C O L L E G E O F S U R G E O N S | D I V I S I O N O F A D V O C A C Y A N D H E A LT H P O L I C Y
Kathleen M. O’Neill; Nakul Raykar, MD; Charles Bush;
Shilpa Murthy, MD; Matthew Coffron, MA;
John H. Armstrong, MD, FACS; John G. Meara, MD, FACS;
2 and Don Selzer, MD, FACS
TABLE OF CONTENTS
Introduction 4
Conclusion/Discussion 25–26
Table 4: Summary of Existing System, Tort Reforms, and Alternatives 25
3
INTRODUCTION
The American College of Surgeons (ACS) developed this primer to inform ACS Fellows about the history of
medical liability as well as alternative, innovative reform approaches to the status quo of tort law in the U.S.
Medical liability in the U.S. is criticized are currently being considered for provides an overview of the history of
as being costly, inefficient, and health system implementation in state medical liability in the U.S., a critical
inconsistent. This broken system is and federal legislation. analysis of traditional tort reform,
failing both doctors and patients alike. and a review of the alternative reform
For more than 40 years, numerous In response to the current crisis, propositions currently being studied
reform efforts have failed to pass it is important that ACS Fellows and considered. Understanding these
legislation that contains costs, remain well informed about the reforms and how they could affect
stabilizes liability insurance premiums, challenges facing medical liability a surgeon’s practice and surgical
and meaningfully promotes patient reform in the U.S. Fellows should patients is critical to the successful
safety. As a result, a number of also understand the alternative evaluation and implementation of
alternative reform propositions, very reforms that are being considered at these reforms.
different from traditional tort reform, state and federal levels. This primer
The concept of physician Within each state, medical liability major deficit in the liability insurer
responsibility for outcomes in the claims are processed through the tort market. Physicians were unable to
medical profession has been around system, a body of law that deals with attain insurance coverage “at any
for thousands of years. First mention resolving civil wrongs.3 Moreover, it is price.” This problem was overcome
of medical liability can be found in the a system in which decisions are based by the creation of physician-owned
Code of Hammurabi, which called for off of precedents and prior rulings and operated insurance companies
a surgeon’s hands to be cut off for bad made by courts and judges; therefore, as well as state-sponsored joint
outcomes.1 The concept of medical decisions vary widely depending on underwriting associations. The second
liability is encoded in ancient Roman the state and jurisdiction where the crisis occurred in the mid-1980s
law and found throughout the legal claim is filed. when physicians could not afford to
systems of Europe. England’s Court actually pay the increasing cost of
of Common Pleas demonstrates an Due to this fragmented system, insurance premiums.5 During both
unbroken series of medical liability medical liability has a long history crises, physicians in certain states
cases all the way into modern times.2 of recurrent crises. The first medical experienced a sudden and steep rise
As American law derives from English liability cases in the U.S. are in the cost of insurance premiums and
common law, we inherited this system documented in the 1800s; however, were no longer able to afford existing
of court-based resolution of medical up until the 1960s, these cases were policies or obtain other ones, leading
liability. relatively rare.4 There have been to fewer practicing physicians in those
two nationally significant medical states and a resultant concern about
Traditionally in the U.S., medical liability crises in U.S. history. The first access to care. A similar phenomenon
liability laws are determined by the occurred in the 1970s when increasing is again occurring in the U.S.
states rather than by federal law. claims and payouts prompted a
4
THE CURRENT CRISIS
The current crisis is one of both availability and affordability. Insurance carriers are choosing to leave
many states, and those that do remain are charging extremely high premiums—especially to physicians
who have previously been sued.6 Insurers blame trial attorneys for the increase in premiums and claims,
pointing to large payouts for successful plaintiffs. Trial attorneys, on the other hand, claim that medical
liability suits are necessary to encourage physicians to prioritize patient safety and that when error rates
decrease, so will litigation.7
5
THE CURRENT CRISIS (cont.)
6
THE IMPORTANCE OF PATIENT SAFETY
The 1999 Institute of Medicine Meaningful strides toward patient Acknowledging error is the first step
(IOM) report revealed that there safety depend on a safe environment to implementing an investigation,
were up to 98,000 deaths in the U.S. to explore the root cause of adverse analysis, and improvement cycle.
each year due to medical errors.23 events and to brainstorm potential The current toxic medical liability
Medicare data estimates 15 percent solutions to avert them in the climate, however, promotes the
of Medicare beneficiaries experience future.30 Over the past decade there exact opposite—it discourages
adverse events, defined as harm to has been tremendous growth in the open discussion of adverse events,
a patient as a result of medical care, number of quality improvement and stifles efforts to study the processes
while hospitalized. An additional 15 patient safety initiatives throughout leading to them, and thereby makes
percent experience temporary harm, hospitals in the U.S.31 Successful preventing recurrence unlikely.
defined as a wide array of events that error reduction programs focus on Improving the medical liability
required medical intervention but continuous analysis, feedback, process system is not the end-all in terms of
did not prolong patient stay or lead improvements, transparency, and improving patient safety, but it is an
to permanent harm.24 The surgical culture change.32 imperative part of the process.
profession is not without culpability.
Several analyses suggest surgery has CURRENT STATUS: DENY
a higher preventable adverse event AND DEFEND
rate than other specialties and is The toxic, litigious climate created
responsible for up to two-thirds of all by the U.S. medical liability system In a busy health
adverse events.25,26 hinders the ability to be transparent,
analyze errors, and develop feedback system with millions
Current consensus is that while and process improvements. In short,
both individual providers as well as it incentivizes a model of “deny and of patients, many
systemic factors play a role in adverse defend.” When an adverse event (AE)
events, the majority of adverse occurs, instead of acknowledging with complex
events are system-based, institutional the AE, investigating the root cause,
errors.27 Provider negligence or and implementing processes to problems requiring a
malice accounts for a very small prevent recurrence, providers and
proportion of litigated cases; 90 variety of specialists
hospitals are incentivized to deny it
percent are due to failed system ever occurred and defend existing,
processes.28 Multiple issues have been
and complicated
potentially imperfect processes.
identified as contributing factors to Institutions that rise above system technology, can
these errors: low hospital volume pressures and disclose adverse events
for certain procedures, excessive expose themselves to liability risk. we reliably reduce
workload, fatigue, inadequate
technology and trainee supervision, A liability system that promotes “deny preventable
inadequate hospital systems, hospital and defend” leads to two problems.
overcrowding, poor communication, First, providers are far less likely to adverse events on a
emergency circumstances, and even discuss perceived errors, even when
the time of day.29 compared with those in other low-
system-wide level?
tolerance-for-error industries such as Absolutely.
In a busy health system with millions air travel.33 Secondly, so ingrained is
of patients, many with complex the fear of liability that no accurate
problems requiring a variety method of counting all AEs in the U.S.
of specialists and complicated actually exists.34 Current estimates
technology, can we reliably reduce of AE rates in the U.S. are, in most
preventable adverse events on a cases, based on incomplete data from
system-wide level? Absolutely. a mishmash of state-based patient
safety organizations and federal
reporting systems.35
7
TRADITIONAL REFORM APPROACHES
Since the emergence of medical liability crises in the 1970s, a number of strategies for medical liability
reform have been attempted.36 The most prominent of these include caps on noneconomic damages,
joint and several liability reform, attorney contingency reform, collateral source reform, pretrial screening
panels, periodic payments, and statutes of limitations and repose. Because the U.S. relies on tort law
in medical liability claims, these reforms are enacted primarily at the state level. However, due to the
inconsistent success in advancing reforms at the state level, the effort has more recently focused on the
federal level.37
There is a substantial amount of practices and increases physician Finally, while multiple studies show
research on the effects of traditional supply, particularly in rural areas and that CNEDs lead to a decrease in the
tort reforms. This research looks at surgical specialties.40-44 size of liability awards, opponents
the individual effect of a reform on contend that a broadly applied cap
containing the costs associated with The effect of CNEDs on claim is not consistent with the principles
medical liability: decreasing claim frequency is even less clear.45,46 One of a “just culture.” By broadly limiting
payouts, decreasing claim frequency, study by Avraham demonstrated payouts, it is possible that some
decreasing insurance premiums, that CNEDs can reduce the number severely injured patients are not
and increasing physician supply. See of cases by 2.04 to 2.52 per 1,000 receiving just compensation for
Table 1 for a review of the traditional doctors, which is a reduction of about legitimate claims. Furthermore,
reforms and their effect on the costs 10 percent to 13 percent. On the there is no direct connection to
associated with medical liability. other hand, Zuckerman et al was not patient safety.
able to show a statistically significant
CAPS ON NONECONOMIC correlation between this reform and JOINT AND SEVERAL
DAMAGES changes in claims frequency.47,48 LIABILITY REFORM
Among the best-researched of Joint and several liability reform,
The effect on insurance premiums
medical liability reforms are caps also known as the “fair share rule,”
is also mixed.49 Zuckerman et al
on noneconomic damages (CNEDs). states that when there are multiple
concluded that within a year after
Noneconomic damages are those defendants in a medical liability case,
caps were instituted, premiums for
awarded as compensation for pain the amount of liability per defendant
general surgeons dropped by 13
and suffering. This category is in is limited to the percentage of fault
percent.50 Viscusi et al were able
contrast to economic damages, which attributed to that defendant in
to demonstrate overall increased
account for lost wages, and punitive the case. These laws are put into
profitability for insurance companies
damages, which are meant to punish place to protect defendants with
with this reform, showing a reduction
negligence and intentional harm.38 greater financial means from being
of losses by about 8 percent; however,
CNEDs seek to control the costs of the responsible for an undue amount of
this reduction did not correlate with
medical liability system by limiting the the indemnity award. These so-called
a subsequent decrease in insurance
payout for noneconomic damages. “deep-pocket” defendants, in some
premiums.51 One explanation for
states, have to cover the cost of
Are caps on noneconomic damages this disconnect may be that caps
indemnity if other defendants cannot
effective? The evidence is mixed. on noneconomic damages actually
pay. While providing protection for
In general, most studies show a lead to increased overhead costs
some physicians, some argue that this
significant decrease in the size of pertaining to litigation. Insurance
reform could also increase individual
claim payouts, with the greatest limit companies may be inclined to take
physician liability relative to that of
on payout size seen in specialties cases to trial, rather than settle, when
the hospital depending on how the
with the highest litigation exposure, there is a limit to how much they may
“percentage of fault” is allocated.54
such as obstetrics and gynecology.39 have to pay at trial.52 In fact, there
In addition, although inconsistently is evidence to suggest that caps on The effects of the joint and several
demonstrated throughout the damages are associated with higher liability reform on medical liability
literature, multiple studies suggest expenditures for the defendant and costs are equivocal. Multiple studies
CNEDs decrease defensive medicine the defense team.53 have shown that there is no effect on
claims payouts.55-57 In terms of claims
8 frequency, one study demonstrated
that the reform decreased the supply.64-72 Further, it is unclear how it Despite the broad implementation of
number of cases by eight percent to would make pursuit of lower-paying this reform, studies over efficacy are
nine percent, but there are no other but meritorious claims any more still equivocal. One study conducted
comparable studies.58 The data for this attractive for plaintiffs' attorneys. in Nevada demonstrated that pretrial
reform’s effect on insurance liability screening panels decrease the
premiums are mixed, with one study COLLATERAL SOURCE REFORM average duration of claims as well as
reporting an effect of decreasing In the current tort law system, increased the percentage of claims
losses by 6.9 percent and another oftentimes a jury is not allowed to that were resolved by the court.77
showing no effect whatsoever.59-61 consider awards a plaintiff might However, multiple other studies,
There is little evidence surrounding have received from other sources some looking at all the states as an
the effect of joint and several liability when determining damages. Plaintiffs aggregate, concluded that there was
on physician supply, but one study therefore can be awarded sums from no significant effect on costs for the
concluded that when states abolished liability insurance as well as workers’ medical liability system, frequency of
this reform, it led to a decline of 2.9 compensation, health insurance, or claims, or amounts of payouts.78-80 As
doctors per 100,000 population (p = other sources for the same injury. such, there is little evidence that these
0.01), a decline in physician supply Collateral source reform allows panels decrease the number of claims
of 1.5 percent.62 There have been deductions of an award if an injured that go to trial or the number of
no studies examining this reform’s patient has received compensation nonmeritorious claims. Furthermore,
effect on patient care. As such, it is from another source and prevents there is high-level evidence that
hard to definitively determine the double recovery on the part of the they have no effect on the size
effect this reform has on liability cost- plaintiff. Although collateral source of indemnity payments, possibly
containment or the quality of care. reform should in theory result in because a negative opinion of the
savings for medical liability systems, panel usually does not prevent a claim
ATTORNEY CONTINGENCY the evidence is mixed regarding from going to trial.81 There is mixed
REFORM the effect on claims payouts and evidence about the effect of pretrial
Attorney contingency reform seeks to frequency.73 In addition, multiple screening panels on lowering liability
limit the fees that plaintiffs’ attorneys studies have shown that collateral premiums and no studies about its
are allowed to charge for medical source reform has no effect on effect on the supply of physicians.82
liability cases. Most plaintiffs’ attorneys lowering insurance liability premiums
are paid a percentage of the award or increasing physician supply.74 Even in systems without pretrial
from liability cases, and their payment screening panels, the plaintiff’s
is contingent upon winning the PRETRIAL SCREENING PANELS attorney has a financial incentive
case. This dynamic creates personal In this reform, expert panels review to determine whether a case is
incentives for attorneys to seek larger each liability claim prior to trial to meritorious before filing a claim, lest
awards and an environment where determine if the case has merit. In they waste time and resources on
some small but meritorious claims theory, pretrial screening panels claims that are unlikely to produce an
may not be pursued.63 Attorney should decrease the number of award. In many of the states, pre-trial
contingency fee reform would ideally frivolous lawsuits going to trial, screening panels are not binding
decrease the amount of marginal thereby improving system efficiency. or mandatory and therefore do not
and nonmeritorious claims that are These panels have been instituted in necessarily prevent frivolous lawsuits.
filed since there would be a lower many states, and the individual states Therefore, experts suggest that
return on the investment of the have different rules regarding the overhead expenses are actually more
plaintiff’s attorney. While it might applicability of the panels’ findings likely to increase with the institution
work in theory, multiple studies and whether they are binding and/ of pretrial screening panels.83 In sum,
have demonstrated no significant or admissible in court.75 In 2002, 31 while there are numerous examples
relationship between this reform states had no malpractice review of pretrial screening panels being
and lower payouts, decreases in panel, seven had a nonmandatory instituted in different states, they have
claim frequency, lowering insurance submission panel, and 13 states had a not proven to be greatly beneficial
premiums, or increasing physician mandatory submission panel.76 as a method for decreasing medical
liability costs.
9
TRADITIONAL REFORM APPROACHES (cont.)
10
TABLE 1: REVIEW OF TRADITIONAL REFORMS
Limits amount of liability Little effect on size of indemnity payments, unknown effect on
payment each defendant claims frequency.
Joint and Several
is responsible for paying to
Liability Reform
percentage of fault attributed There is no significant evidence that it affects any other areas of care.
to that defendant.
Limits amount attorneys can Strong evidence that it does not affect claims size or frequency.
Attorney Contingency charge on contingency.
Reform No strong evidence that it affects overhead costs, premium costs,
or patient care or access.
Allows reduction from High level evidence that it does not affect claims payouts.
indemnity if plaintiff has
received payment for injury Mid-level evidence that it doesn’t affect claims frequency.
Collateral Source form another source.
Reform No evidence that it affects premium costs, defensive medicine,
or physician supply.
Cases are reviewed before trial No evidence that they decrease claim frequency, non-meritorious
to determine merit of claim. claims, or cost of claims.
Pre-trial Screening
Panels Effects on physician supply or quality of care has not been studied.
Allow for medical liability Little evidence that periodic payments affect claims size, frequency,
awards to be paid over a or overhead costs.
period of time rather than in
Periodic Payments a lump sum. No evidence that it affects defensive medicine, physician supply,
or quality of care.
Limits how long after the Decrease growth of liability premiums, but otherwise do not have
discovery or occurrence of an a significant effect on claims frequency or costs based on mid-level
Statute of Limitations injury a plaintiff may file suit. evidence.
and Repose
Little evidence that they affect defensive medicine, physician supply
or quality of care.
11
TRADITIONAL REFORM APPROACHES (cont.)
Liability reform in the national health care reform conversation has remained on the
sidelines. The 2010 Patient Protection and Affordable Care Act did not include meaningful
liability reform and only authorized $50 million for the testing of alternative dispute
mechanisms by states and health care systems.
The states have been regarded as the incubators for liability reform legislation and
have had mixed results. There is a diversity of approaches to damage caps, joint liability,
collateral sources of benefits, attorney fee limitations, and periodic payments. Damage
caps have been the subject of judicial scrutiny. States with caps on noneconomic
damages are being challenged in the courts regarding the constitutionality of caps.
Currently, caps on noneconomic damages have been upheld in 15 states and overturned
in 11 states (Alabama, Georgia, Illinois, Kansas, Missouri, New Hampshire, North Dakota,
Oklahoma, Oregon, Washington, and Wisconsin). In five states, caps on both economic
and noneconomic damages have been upheld.
In sum, federal liability reform has remained elusive, regardless of the political party in
charge, and does not appear to be viable in the political system.97
13
ALTERNATIVE REFORM PROPOSITIONS
Until recently, medical liability reform in the U.S. has focused on tort reform. Thus far, however, it has
been unsuccessful in making significant changes to the medical liability system, and its future is bleak
given significant legislative opposition at the federal level. Fortunately, there has been growing interest
in exploring options outside the realm of traditional reforms.98 Here is a review of alternatives to the
traditional reforms that include legislative options at both the state and federal level as well as innovative
reforms that can be instituted by health care institutions and liability insurers without time-intensive
legislative action.
SAFE HARBORS accepted standards of practice in the or expanded following the five-
In order to promote reproducible and community.” It further asserted that year program. In fact, during the
reliable court decisions, some states “[e]vidence of a departure from a five years of the program, the safe
have instituted programs to protect practice parameter is admissible only harbor defense was employed in a
physicians that follow accepted on the issue of whether the provider is medical liability case only once.104
guidelines of practice, termed “safe entitled to an absolute defense.”102 One explanation for the failure of the
harbors.” Traditionally, guidelines program is the lack of comprehensive
have been used in the courtroom In theory these safe harbor guidelines guidelines for each specialty. In all,
as a “two-way street,” which is to should improve the system in two the project included only 22 protocols
say that they can be used either as ways. First, they should prevent or on its list of approved guidelines for
exculpatory, to demonstrate that provide for quick dismissal of claims all of the specialties combined. In
practitioners adhered to accepted that lack merit as well as provide fact, the Maine Medical Association
guidelines, or inculpatory, to show the physician with a presumption legal counsel has concluded that the
that the practitioner deviated from of nonnegligence if they adhered Demonstration Project covers only
the standard of care.99 In one review to approved guidelines of care, thus “three to four percent of medicine
of legal cases that used guidelines, avoiding the traditional “battle of the in Maine.”105
Hyams et al concluded that, in experts” in the courtroom. Second,
general, practice guidelines are they should encourage physicians to From 1994 to 1998, Florida conducted
currently used more often for plaintiffs stay up-to-date on current practice a Caesarian Demonstration Project
than for a physician’s defense.100 guidelines and feel secure in their (CDP) using safe harbors. The law
clinical judgment when they adhere was similarly structured to provide
Safe harbor laws are designed to use to them, thereby decreasing the affirmative defense for physicians
guidelines only as an exculpatory amount of “defensive medicine.” who adhered to accepted practice
device to protect physicians The concept of safe harbors has guidelines, hoping that adherence to
from frivolous lawsuits while not been used in a number of states with guidelines would decrease the rate of
endangering physicians who use variable success. caesarian sections. However, physician
their clinical judgment to deviate buy-in was not as robust, and only
from standard guidelines. To do this, In 1990, the Maine Medical Liability 20 percent of eligible physicians
the laws generally provide a clause Demonstration Project was a five-year decided to participate—and these
that allows for a new affirmative safe harbor program enacted by the physicians were found to be the
defense for physicians while inhibiting state legislature limited to four main least likely, on average, to perform
the introduction of guidelines to areas: OB/GYN, emergency medicine, caesarian sections.106 The project was
claim that the standard of care was radiology, and anesthesia.103 For terminated due to the fact that the
not followed.101 For example, in physicians who agreed in advance state was unable to analyze the effects
the original Minnesota safe harbor to follow certain practice guidelines, of the program because they could
law, it stated that the guidelines it allowed them a new affirmative not gather data on medical liability
are only to be used as “an absolute defense using those guidelines. premiums or the number of medical
defense against an allegation that Despite having high physician buy- liability cases. It was likewise unable to
a provider did not comply with in, the program was not renewed evaluate the question of whether the
14
program increased the defensibility of
medical liability claims for physicians
and therefore decreased the need to
practice defensive medicine.107 As of
January 1998 there was no known
case of a physician using guideline
compliance as a defense in a medical
liability claim. However, the state
was equivocal in their final report
and recommended that the safe
harbor program be initiated for other
guidelines that may be able to have
more of an impact.108
fear of their words being used against In 1995, Rush Medical Center in side’s willingness to embrace
them during litigation. This concern Chicago, IL, instituted an ADR model negotiation. While compulsory
further impedes patient safety by for the resolution of medical liability mediation may not be a method for
preventing a productive investigation claims. The program was structured widespread reform, it is critical that
and conversation into the root such that for each medical liability physicians and patients are aware of
causes of a mistake and how it can be claim, the patients were approached alternatives to traditional litigation
prevented. with the possibility of entering and are able to make appropriate
voluntarily into mediation. In the five decisions for each individual case.
There are four categories of years of the program, 55 cases were
alternative dispute resolution (ADR): resolved via mediation. The program There have also been instances
mediation, arbitration, negotiation, recorded a significant reduction in the where binding arbitration was used
and collaborative law. Of these, time spent per lawsuit—80 percent to settle medical liability disputes.
mediation and arbitration are the best of disputes were resolved within a Binding arbitration is a form of
equipped to deal with medical liability year of the lawsuit being filed and alternative dispute resolution in which
claims. In arbitration, there is no jury. usually within three to four hours discussions between each side of the
Instead, a judge hears both sides and
provides a ruling that is final.116 During
mediation, a neutral third party is
present and facilitates negotiations Alternative Dispute Resolution: A different kind of trial.
between parties by breaking down
barriers in communication, mitigating Arbitration: A trial that involves only a judge; no jury is present.
emotions, and promoting trust. This The judge's decision is final.
form of negotiation is nonbinding,
which is to say both parties are free to Mediation: Instead of a judge and jury, a neutral third party facilitates
leave the negotiations at any time and negotiation to come to a mutually agreed upon resolution.
maintain the right to go to trial should
either party wish to do so.
In 2005, New Zealand went to a fully no-fault system by categorizing all injuries as “treatment injuries”
rather than “medical errors” or “medical mishaps” attributed to individual physicians or hospitals—
thereby lumping all injuries as due to “accident” rather than “negligence.” This is an important distinction
because in a no-fault system the negligence or even the “avoidability” standard is replaced with one that
does not require proof that the provider is at fault.156 As such, it de-stigmatizes the provider and creates
an atmosphere where the physician feels free to discuss medical errors openly with both the patient and
the medical community at large. The reason that New Zealand decided to switch to a no-fault health
court system was to encourage physicians to assist injured patients in making claims earlier—thereby
streamlining the process of compensation for the majority of patients and encouraging better reporting
of injuries.157
Sweden also has a patient insurance company (LOF) that assumes a no-fault system, which makes
it much easier for patients to seek compensation for injury while preserving the doctor-patient
relationship. In fact, in Sweden more than 60 percent of claims are filed with the assistance of the
patient’s physician.158 In addition, the LOF conducts its own descriptive analysis of claims data and
disseminates its findings to hospitals.159 The main difference between the two systems is that in Sweden,
patients instead may request a panel of physician experts and then proceed to arbitration if they are
unsatisfied with the ruling of LOF.160 In New Zealand, patients have the option to appeal to the courts.
One of the greatest strengths of this system is that it better serves injured patients. In the U.S., most patients
with preventable injuries are ineligible for compensation because they do not reach the higher standard
of gross negligence.161 Even of those patients who are eligible, only a small fraction of them pursue a
lawsuit because of the administrative barriers of entering in a long, drawn-out process of litigation. Less
than 3 percent of patients who sustain injury due to medical error sue for monetary compensation.162 By
changing the standard of compensation from “negligence” to “avoidability” and simplifying the claims
process, a broader range of patients have access to appropriate compensation. This effect would be even
more evident in a no-fault system where the provider could assist the patient in applying for compensation.
Moreover, by serving as a centralized repository for all claims, health courts collect data on hospital error/
avoidable complication rates and set up a natural incentive for hospitals to improve patient safety. As such,
they serve as a wealth of information for patient safety research and regulation.163
Of note: New Zealand hospitals, after 30 years of a no-fault system, appear no safer than comparable
hospitals in other countries.164 For example, the adverse event rate in New Zealand is around 12.9 percent,
compared with 16.6 percent in Australia, 13.5 percent in the U.S., and 10.8 percent in the U.K.165
New Zealand hospitals are average at best.166
18
One solution for this problem is to Limited success has been its administrative costs accounting
jettison the tort system altogether demonstrated for administrative for about 10 percent of the money
and set up a parallel system of courts compensation systems in the U.S. spent.146 In addition, the ACC regularly
specifically designed for medical For example, in an effort to keep uses its claims data for safety
liability cases. Also known as health liability coverage for obstetricians improvement.147
courts, this system would provide affordable, Virginia banned medical
administrative compensation for liability claims for severe neurological, Despite the potential benefits,
medical injuries.140 As described by birth-related injuries in 1987.142 In there are major barriers to the
Mello et al, this court system would place of tort law, they instituted implementation of a health court
have five key components: specialized the Virginia Birth-Related Injury system in the U.S. Critics contend
judges, an “avoidability” standard, Compensation Program (BIP). Similar that nation-wide health courts have
evidence-based compensation to a health court, patients have not been shown to increase patient
awards, guidelines on the size access to an administrative system safety or necessarily reduce costs,
of economic and noneconomic akin to workers compensation in and therefore would be unlikely to
damages, and fast-tracking of lieu of the traditional tort system. do so in the future. New Zealand
common claims.141 First, specialized Florida faced a similar crisis of rising hospitals, after 30 years of the ACC,
judges, specifically trained in medical medical liability insurance premium appear no safer than comparable
liability issues, would hear all claims. among obstetricians, so they enacted hospitals in other countries.148 For
Some of these individuals may the Florida Neurological Injury example, the adverse event rate in
have a combined judicial-medical Compensation Association (NICA) law. New Zealand is around 12.9 percent,
background. Second, the court Similar to the legislation in Virginia, compared with 16.6 percent in
would adopt an “avoidability” or this system was effective at keeping Australia, 13.5 percent in the U.S.,
“preventability” standard instead of liability costs down. Comparable and 10.8 percent in the U.K.149,150
the current “negligence” standard. compensation was provided to Therefore, New Zealand hospitals are
This means that patients would not patients in a more efficient manner average at best. In terms of cost, it is
have to prove gross negligence but with a much lower overhead cost. possible that through the creation of
only that the injury would not have In addition, patient and physician an expensive administrative system
occurred had the practitioner either satisfaction were similar to that in that will be available to a broader
followed best practices or if a better a traditional tort system.143 These range of patients, costs could increase
system were in place. Providers, programs are small but they reveal rather than decrease. Moreover, it
likewise, would not need to accept the potential of an expanded health is unclear what effect health courts
that they were “negligent” in order court system. would have on payouts since in some
to admit that an avoidable adverse- states greater than 90 percent of
event occurred. Third, compensation Administrative compensation systems cases are settled out of court either
awards would be based on expert have also been successful around before a trial or before the jury made
interpretation of the literature. the world. In 1974, New Zealand a verdict.151 For individual patients as
Fourth, the evidence base for these decided to completely overhaul well, levels of compensation tend to
compensation awards would be their tort-based system of medical be lower in a health court system.152
guidelines informing decisions on the liability and instead instituted a Finally, there are significant legal
size of economic and noneconomic government-funded administrative barriers to the institution of a health
damages. In theory, court decisions compensation system.144 With the court system. Legal scholars disagree
would then be more reliable and New Zealand Accident Compensation over whether the constitution
“runaway juries” would be prevented Corporation (ACC), patients, in includes a right to jury trial in liability
from delivering large, unwarranted exchange for receiving government- cases.153 A particular barrier for a no-
awards. Fifth and finally, given court funded compensation, give up the fault system is that many Americans
familiarity with certain common right to sue for damages for personal afraid of unchecked “bad-apple”
claims and the awards that they injury. However, in cases where doctors are quick to equate “no-fault”
generally receive, courts could allow there is an element of conscious or with “no-accountability” in medical
for fast-tracking of compensation for reckless conduct, patients are allowed liability claims.154 While some of
certain kinds of injuries, significantly to sue for additional damages.145 these barriers could potentially be
streamlining the system for Studies have shown that this system overcome with innovations such as
legitimately injured patients. is very cost-effective—total medical opt-out provisions, provisions for legal
injuries cost around $29 million per representation, or commissioners
year, about $6.50 per capita, with charged with investigating gross
19
ALTERNATIVE REFORM PROPOSITIONS (cont.)
negligence and appeal rights, this include self-insured academic medical a system of protocols and anesthetic
effort would require significant centers, integrated delivery systems, techniques that were implemented
political will on the part of politicians and Veteran’s Affairs (VA) hospitals. across the anesthesiology
in the federal government.155 Many academic medical centers in departments. This caused a significant
the U.S. are self-insured and directly decrease in mortality by a factor of
In conclusion, while administrative employ the physicians who operate 10. As would be expected, the liability
compensations systems, both in their hospitals. These hospitals premiums for anesthesiologists
no-fault systems and otherwise, then provide malpractice insurance dropped from near the top of all
have shown significant success in to their employees as a part of their specialties at Harvard to near the
regulating medical liability abroad, employment contract. Similarly, bottom.171 Another interesting
it is unclear whether this system many hospital systems, such as method of enterprise liability can be
can be appropriately adapted in the Kaiser Permanente, are self-insured found in the University of California
U.S. Given that this change requires and directly employ physicians. In (UC) hospital system. Due to California
a complete overhaul of the current these “integrated delivery systems” law, university hospitals can be held
system, it is reasonable to ask for liable for the actions of the physicians
empirical evidence that health courts who practice in the UC system. When
will deliver on their potential for a suit is filed against a UC physician,
cutting costs, better serving patients Enterprise Liability: the general counsel requests that
and contributing to patient safety A system in which the the plaintiff drop the suit against
initiatives. As such, it is clear that it the physician and list the Board of
would be worthwhile to invest in institutional health care
Regents of the University of California
demonstration projects that provide provider assumes some or as the only defendant. Doing so eases
this evidence base for proceeding all of the liability for medical the amount of stress that is placed
forward. errors rather than the on the physician during discovery,
individual physicians. though the physician usually acts as
ENTERPRISE LIABILITY the primary witness if the case does
Enterprise liability refers to a system go to trial.172
in which the institutional health care
provider assumes some or all of the physicians can be sued, but, again, the Hospitals that employ and insure
liability for medical errors rather than hospital is ultimately held financially their nurses and physicians have
the individual physicians. As such, responsible for the liability.170 In VA played a large role in creating
physicians are not held responsible hospitals, physicians cannot be sued. and implementing patient safety
for the systemic failures of the However, the U.S. government can be measures.173 The shared liability of
hospitals.167 In addition, since there sued instead for malpractice if certain the hospitals has led both the VA
would only be one plaintiff and one special conditions are met. and Kaiser Permanente to invest in
legal defense team, overhead costs patient safety initiatives. In fact, they
are decreased. However, increased Because the liability insurance is collaborate on the development
expenses for hospitals due to liability owned by the academic medical of new tools and technologies
coverage would likely be passed on center or hospital system, any losses to improve patient care. Most
to physicians through decreased through malpractice will eventually significant among these innovations
payment or surcharges.168 The most be absorbed by the hospital itself. In is the implementation of Web-based
important change, however, is that the end, this provides the incentive decision support programs that aid
institutions are directly responsible for the hospital to improve patient physicians in the diagnosis of medical
for the systemic failures that cause care similar to what one would find conditions.174 One of these systems,
the vast majority of medical errors.169 in enterprise liability. One such called Isabel, has been used in a
Therefore, it creates an appropriate example took place in Harvard- number of hospitals.175
incentive structure for medical affiliated hospitals’ anesthesiology
errors to be translated into improved departments. After years of high There are a number of reasons why
patient safety and a higher quality medical liability premiums, the risk enterprise liability has not been
of patient care. management team at Harvard asked implemented on a large scale in
the anesthesiology departments to the U.S. One of the main concerns
While there are no true examples of investigate the problems with their is that it could result in physicians
enterprise liability systems operating anesthesia care. The results of their losing autonomy in making clinical
in the U.S., the best approximates findings were then transformed into decisions for their patients. This
20
concern came to the forefront of this approach.179 Additionally, it would reasons doctors are incentivized to
discussion in 1993, when enterprise be difficult to assign liability to a essentially hide medical errors is that
liability was made a cornerstone of hospital when a physician is in private an honest disclosure might lead to
the Clinton Administration’s health practice but has admitting privileges legal consequences down the line.182
care reform proposals. Both the at multiple hospitals.180 As such, the current medical liability
American Medical Association and climate has generated reluctance from
the Physician Insurer Association of In spite of these barriers, in theory, providers to discuss not only medical
America opposed and actively lobbied enterprise liability makes sense as errors but also complications that
against this proposal, and it eventually a means of controlling costs and were not due to negligence.
died in Congress.176 A second issue increasing patient safety. However,
that inhibits implementation of there simply has not been a significant A “communication and resolution”
enterprise liability is that it would be amount of research into how the model to medical adverse events,
financially difficult for many hospitals implementation of enterprise liability however, takes the reverse approach.
in lower socioeconomic areas to might affect overall costs or patient Initially introduced at the Veterans
absorb the costs associated with care.181 Therefore, the feasibility of this Affairs Hospital in Lexington, VA, in
being responsible 1987, the University
for all medical of Michigan Health
liability costs. Many System (UMHS)
hospitals that serve adopted, improved,
large proportions of and implemented
uninsured patients the model in the
are already on a early 2000s.183,184
very tight budget, There are three
and having to cover main pillars of
100 percent of the the disclose and
medical liability offer model, as
may be too much per UHMS: (1)
for them to handle Compensate
financially.177 quickly and fairly
when unreasonable
Enterprise liability medical care
also faces some causes injury; (2)
sociopolitical Defend medically
barriers to reasonable care
implementation. vigorously; and
One of the reasons (3) Reduce patient
it has failed in the injuries, and
past is that since it takes liability away model of medical liability deserves therefore claims, by learning from
from individuals and concentrates it further study. As such, further patients’ experiences.185
into organizations, it may be viewed exploration of enterprise liability as a
as being a step toward “socialized” means of controlling medical liability The UMHS communication
medicine, which carries negative costs and improving patient safety and resolution program (CRP)
connotations in the American should be encouraged. accomplishes this through a series
political sphere.178 of strategies that prioritize timely
COMMUNICATION AND and open communication between
Finally, not all physicians practice RESOLUTION PROGRAMS (CRP) patient and provider. Patient claims
within a large medical system. The traditional approach to medical are investigated expeditiously and
When a medical error takes place liability claims is known as “deny and representatives offer to meet regularly
in a rural physician’s office, there defend.” It is essentially a destructive with patients, families, and legal
is no organization to cover the attitude—in response to a potential counsel for updates and for input
medical liability costs. Therefore, medical error, physicians are taught into the process. If the investigators
physicians with private practices, to instinctively deny that any error conclude that the patient was
comprising approximately one-fifth occurred and aggressively defend injured as a result of medical error,
of surgeons, would not benefit from their provision of care. One of the they offer a prompt apology as well
21
ALTERNATIVE REFORM PROPOSITIONS (cont.)
as compensation. However, if the legal costs dropping to 40 percent resolution. Therefore, the program
committee finds that the patient of the initial values.189,190 Perhaps did not incorporate a robust patient
received appropriate care then most telling, however, is that the safety initiative to complement cost
they aggressively defend the care total number of new claims per year containment.
provided and, as a policy, will not dropped significantly upon program
settle the case.186 Underlying the implementation (see Table 3).191 COPIC, a Colorado-based risk
entire process is a feedback loop into management and insurance company,
clinical practice that incorporates The initial proponents of the program started its own version of a CRP in
committee findings to prevent demonstrated equally compelling 2000. COPIC’s program is focused on
recurrences of similar events. results. In 1987, the VA Hospital in early recognition of events, disclosure,
Lexington, KY, instituted a robust and quick resolution. However, the
The positive impact the program program for the early disclosure program was more modest in scope to
has had on medical liability costs at of medical errors and the offer of the UHMS program; it did not include
UMHS is clear. In August 2001, UMHS appropriate compensation. As a result, complaints involving patient deaths,
had an average of 260 ongoing they have an average settlement complaints that already had attorney
cases at any given time. Four years per claim of about $15,000, which involvement, complaints directed to
later, this number was less than half, is significantly lower than those of the Board of Medical Examiners, or
at 114.187 Average monthly rate of other VA hospitals with an average claims that had already been filed.193
lawsuits decreased from 2.13 to 0.75 settlement per claim of about $98,000. If the adverse event met specific
per 100,000 patient encounters. The They experienced a dramatically criteria, patients would receive
median time from claim reporting to reduced time to resolution from two monetary awards up to $30,000 and
resolution decreased from 1.36 to 0.95 to four years to two to four months reimbursement for out-of-pocket
years.188 From an economic standpoint while also reducing legal costs.192 expenses. In the first five years of
as well, UMHS decreased their annual The VA program was not as focused the program, 2000–2005, claims
litigation costs by $2 million, with on adverse event prevention/ dropped 50 percent and settlement
average monthly cost rates for total future liability reduction as it was costs dropped 23 percent.194 Like
liability, patient compensation, and on current cost control and claim the VA program before it, COPIC,
150
120
TABLE 3: NEW LIABILITY CLAIMS AT THE
UNIVERSITY OF MICHIGAN HEALTH SYSTEM
90
60
30
0
1999 2000 2001 2002 2003 2004 2005 2006
22
well-intentioned offers by hospitals
Communication and Resolution Programs: A program that can may promote suspicion and greater
likelihood to pursue litigation.200
be implemented by a hospital system with three main pillars: (1)
Compensate quickly and fairly when unreasonable medical care Recent publications have analyzed the
causes injury; (2) Defend medically reasonable care vigorously; and early challenges and lessons learned
(3) Reduce patient injuries, and therefore claims, by learning from from the demonstration projects of
CRPs across the country. While the
patients’ experiences. long-term financial impact has not yet
been published, the authors reflected
on the qualitative advances after
too, was not coupled to an error average claim costs for cases closed only a few years into the project. In a
prevention program but nonetheless within the same year decreased to a look at six early adopters of CRPs—
demonstrates a welcome alternative seven-year record low.198 Stanford University Medical Indemnity
to “deny and defend.”195 and Trust Insurance Company,
Despite the encouraging results
In more recent years, several other University of Illinois Medical Center
at programs across the country,
disclose and offer models have been at Chicago, University of Michigan
there are significant barriers to
developed at top academic centers Health System, COPIC Insurance
implementation as well as uncertainty
(Illinois, Stanford, Harvard/BIDMC) and Company, West Virginia Mutual
over the optimal conditions on which
risk management firms nationwide Insurance Company, and Coverys—
to make offers. In a study assessing
(West Virginia Mutual, ProMutual three key factors were associated
views on implementation amongst
Group).196 Early data suggest the with successful implementation.
hospital and clinical stakeholders,
The authors found that it was crucial
programs are working. The number of Bell et al identified anxiety about
that the CRP invest in building and
liability filings against the University greater liability exposure among
marketing the program to skeptical
of Illinois has been cut in half in the physicians and providers, fear
physicians. Achieving physician
first two years of the program. Only of name-based reporting of
buy-in was difficult on two levels.
one lawsuit was generated amongst liability settlements, complexities
First, many practitioners were
the 37 cases where the hospital of insurance coordination, and
unfamiliar with the program and
acknowledged a preventable error inadequate protections of apologies
needed significant education around
and apologized.197 Stanford University or statements of empathy in legal
the issue. Second, program leaders
noted that the percentage of reported suits as significant but surmountable
found it very difficult to overcome
claims that have been closed in barriers to widespread adoption of
skepticism about the program due to
the same year they were opened CRPs.199 A study by Murtagh et al
concerns about disclosure of errors
increased to a seven-year high and demonstrated that even generous and
leading to more lawsuits that would
have to be reported to the National
Practitioner Data Bank. As such, the family consult a lawyer prior to CRPs hold great promise but
education and investment upfront signing a release of liability contract— additional work needs to be done on
were very important to the success increasing the amount of time, effort, an institutional and legislative level
of the program. In addition, many and money required to resolve claims. to promote a friendlier environment
pointed to one or two key individuals Moreover, since lawyers are loathe to for adoption. The two major barriers
who championed the program and take on cases that have little chance with simple, legislative solutions
were responsible for making it a of significant pay out, the programs are apology protection and name-
success at each institution. Finally, found it difficult to find lawyers willing based reporting. Indeed, in some
it was imperative that from the very to take on smaller claims.201 states these barriers have already
beginning the leaders made it clear been addressed. Massachusetts
that the program would take some Some progress has been made in the recently passed legislation—the
time before creating meaningful legislative realm to accommodate Health Payment Reform Act—which
change. CRPs, though considerable variability includes a six-month prelitigation
in interpretations and language of the resolution period that promotes
One demonstration project laws preclude meaningful protection. sharing of medical records and full
concentrated specifically on serious Thirty-five states have adopted some disclosure by providers and offers
adverse events in general surgery form of “apology law,” which protect strong apology protection.206 A seven-
and was implemented in five New a physician’s apology or statements hospital collaborative, including Beth
York hospitals in 2009. The author of sympathy as inadmissible to Israel Deaconess Medical Center
noted that by implementing a CRP, prove negligence in a civil lawsuit.202 and affiliates, has since started a
there was tangible culture shift Considerable variability, however, communication and resolution
among the surgeons to prioritize exists with these laws ranging from program. The results from this
patient safety by strengthening the offering broad protection such as in legislation and program, in addition
relationship between clinicians and Colorado to narrow interpretations in to the lessons learned from programs
risk management staff, improved Texas and Vermont.203 In many cases across the country, will hold great
tracking of reported events, and the these laws can be counter-productive, interest for the rest of the industry in
institution encouraged more robust as they may promote a false sense implementing fair, patient-centered
disclosure practices. However, none of confidence among providers medico-legal reform.
of the hospitals were truly able to regarding true protections the laws
implement the resolution component actually provide.204
of the program as envisioned. The
reasons for this stemmed from two Name-based reporting requirements
sources. The first was resistance of individual physicians requirements
from providers. It was difficult to to national and state agencies like the
convince practitioners to embrace National Provider Data Bank (NPDB)
the concept of early settlement offers. and Board of Registration in Medicine
Worried that compensation offers (BORM) with medical liability
would prompt more lawsuits rather settlements was another strong
than deter them, most practitioners barrier to adoption.205 Physicians were
preferred to defer to negotiations by particularly reluctant to have the
the insurer. The second roadblock had settlement tied to their name when it
to do with the liability environment was paid out over a systems-based or
in New York. Most of the insurers of institutional culpability.
each of the hospitals required that
24
CONCLUSION/DISCUSSION
The medical liability system is broken and failing all key stakeholders: physicians, patients, and the health
care system. It is costly, inefficient, and the process of compensating injuries related to medical errors is
imprecise. For the past 40 years, reforms to the tort system have met with variable success, partly due
to tepid political enthusiasm and partly due to equivocal cost-control and patient safety outcomes.
Increasingly partisan political climates have made advancing additional tort reforms difficult, especially
on the federal level. The time has come for a paradigm shift in our strategy for addressing medical liability
from simple tort reform focused on cost-containment to a patient-centered approach that prioritizes
patient safety and preserves the doctor-patient relationship.
The mission of the ACS is to improve realistic in implementation than in safe harbors, and they may prove
care of the surgical patient, safeguard others. It will be important that useful in highly protocoled situations,
standards of care, and create an the ACS support reform options such as the workup for acute coronary
ethical practice environment.207 The that restore a less stressful work syndrome, to provide some protection
ACS has proven itself to be a leader experience for surgeons, push patient- against liability.
in promoting patient safety through safety to the forefront of the reform
its ACS National Surgical Quality agenda and have a realistic path Voluntary mediation has shown
Improvement Program (ACS NSQIP) towards adoption. some promise as a form of alternative
and Inspiring Quality campaigns.208,209 dispute resolution and it is relatively
The ACS must continue to lead by Safe harbors, while attractive easy to implement with moderate
advancing realistic, patient-centered in concept, are complicated in improvement in outcomes. Further, it
reforms to the medical liability system. implementation for surgical issues. To does not require significant legislative
date, there have been no successful change and can be adopted by
Alternative solutions to traditional demonstration projects and recent institutions quickly. National reporting
tort reform are in various stages of studies assessing potential utility have requirements, however, persist as a
exploration; some more consistent been equivocal. That being said, AHRQ potential barrier.
with ACS principles, and some more and Congress have a renewed interest
Alternative
Current Tort Health Enterprise Safe Communication and
Dispute
System Reform Courts Liability Harbors Resolution Programs
Resolution
Cost
Control
Just
Culture
Patient
Safety
Feasibility
Requires
Culture YES YES
Change?
25
CONCLUSION/DISCUSSION (cont.)
26
REFERENCES
1. Smith, JM Powis. Origin & History of 10. Brennan T, Leape L, Laird N, Hebert 15. Balch CM, Oreskovich MR, Dyrbye
Hebrew Law. Chicago, IL: University L, Localio A, Lawthers A, Newhouse LN, Colaiano JM, Satele DV, Sloan JA,
of Chicago Press, 1931. J, Weiler P, Hiatt H. Incidence of Shanafelt TD. Personal consequences
adverse events and negligence in of malpractice lawsuits on
2. Bal BS. An introduction to hospitalized patients. Results of American surgeons. J Am Coll Surg.
medical malpractice in the the harvard medical practice study 2011;213(5):657-667.
United States. Clin Orthop Relat I. N Engl J Med. 1991;324(6):370-
Res. 2009 Feb;467(2):339-347. 376. + Localio AR, Lawthers AG, 16. FA Sloan, RR Bovbjerg, PB Githens.
doi: 10.1007/s11999-008-0636-2. Brennan TA, Laird NM, Hebert LE, Insuring Medical malpractice.
Epub 2008 Nov 26. PubMed PMID: Peterson LM, Newhouse JP, Weiler New York, NY : Oxford University
19034593; PubMed Central PMCID: PC, Hiatt HH. Relation between Press, 1991.
PMC2628513. malpractice claims and adverse
events due to negligence. Results of 17. Ciofu DC. The Frequency and
3. White GE. Tort Law in America: An the harvard medical practice study Severity of Medical malpractice
Intellectual History. New York, NY: III. N Engl J Med. 1991;325(4):245- Claims: High Risk and Low Risk
Oxford U Press, 2003. 251. + Studdert DM, Thomas Specialties. Maedica (Buchar). 2011
EJ, Burstin HR, Zbar Bl, Orav EJ, Jul, Vol. 6(3): 230-231.
4. Bovbjerg RR. Malpractice crisis and
Brennan TA. Negligent care and
reform. Clin Perinatol. 2005, Vol. 18. Seabury et al. Health Aff (Millwood).
malpractice claiming behavior
32:203–233, viii–ix. 2013 Jan;32(1) 111-119.
in Utah and Colorado. Med Care.
5. Mello MM, Studdert DM, Brennan 2000;38(3):250-260 + Studdert DM,
19. Jena AB, Chandra A, Lakdawalla D,
TA. The new medical malpractice Mello MM, Sage WM, DesRoches
Seabury S. Outcomes of medical
crisis. N Engl J Med. 2003 Jun CM, Peugh J, Zapert K, Brennan TA.
malpractice litigation against
5;348(23):2281-2284. Defensive medicine among high-risk
US physicians. Arch Intern Med.
specialist physicians in a volatile
2012;172(11):892-894.
6. Mello MM, Studdert DM, Brennan practice environment. JAMA. 2005;
TA, et al. 293(21):2609-2617. 20. Kachalia AB, Mello MM, Brennan TA,
Studdert DM. Beyond negligence:
7. Mello MM, Studdert DM, Brennan 11. Studdert DM, Mello MM, Gawande
Avoidability and medical injury
TA, et al. AA, et al.
compensation. Soc Sci Med.
12. Balch CM, Oreskovich MR, Dyrbye 2008;66(2):387-402.
8. MM Mello, A Chandra, AA Gawande,
DM Studdert. National costs of the LN, Colaiano JM, Satele DV,
21. Liability Protections for EMTALA
medical liability system. Millwood: Sloan JA, Shanafelt TD. Personal
Mandated Care. American College of
Health Aff. 2010, Vol. 29(9): 1569- consequences of malpractice
Surgeons.
1577. lawsuits on American surgeons. J Am
Coll Surg. 2011;213(5):657-667 + Rice 22. Ensuring Medical Volunteers
9. MM Mello, A Chandra, AA Gawande, B. Malpractice Rates. How high now. Can Reach Patients in a Disaster.
et al, + Studdert DM, Mello MM, Med Econ. 2004; 81(1):57-59. American College of Surgeons.
Gawande AA, Gandhi TK, Kachalia
A, Yoon C, Puopolo AL, Brennan TA. 13. Studdert DM, Mello MM, Brennan TA. 23. Kohn LT, Corrigan JM, Donaldson MS,
Claims, errors and compensation Medical malpractice. N Engl J Med. eds. To err is human: building a safer
payments in medical malpractice 2004;350(3):283-292. health system. Washington, DC.:
litigation. N Engl J Med. 2006; National Academy Press, 2000.
354(19):2024-2033. 14. Mastroianni AC, Mello MM, Sommer
S, Hardy M, Gallagher TH. The flaws
in state ‘apology’ and ‘disclosure’
laws dilute their intended impact
on malpractice suits. Health Aff
(Millwood). 2010 Sep; 29(9):
1611-1169.
27
REFERENCES (cont.)
24. Levinson, Daniel. “Adverse Events in 31. Ayers LR, Beyea SC, Godfrey MM, 38. Metzler IS, Meara JG. Medical liability
Hospitals: National Incidence Among Harper DC, Nelson EC, Batalden reform: evidence for legislative and
Medicare Beneficiaries.” Department PB. Quality improvement learning alternative approaches. Bull Am Coll
of Health and Human Services. collaboratives. Qual Manag Health Surg. 2012 Jan;97(1):6-11. PubMed
Office of the Inspector General. Care. 2005, 14(4):234 + Morath J, PMID: 22315877.
November 2010. Downloaded Leary M. Creating safe spaces in
September 2013 from oig.hhs.gov/ organization to talk about safety. 39. Bal BS, et al.
oei/reports/oei-06-08-00220.pdf. Nursing Economics. 2004, 22(3):
334-351. 40. Klick J, Stratmann T. Does Medical
25. Gawande AA, Thomas EJ, Zinner Malpractice Reform Help States
MJ, Brennan T. The incidence and 32. http://www.cincinnatichildrens. Retain Physicians and Does It
nature of surgical adverse events org/assets/0/78/1067/2709/2807/ Matter? Working Paper; 2003.
in Colorado and Utah in 1992. 2813/2a39304a-386d-49d4-ad78-
(Surgery 1999;126:66-75.) + Rogers 19c941b20033.pdf. + McCannon CJ, 41. Mello MM, Kachalia A, Goodell S.
SO, Gawande AA, et al. Analysis of Hackbarth AD, Griffin FA. Miles to Medical malpractice. April 2011
surgical errors in closed malpractice go: An introduction to the 5 Million update. Synth Proj Res Synth Rep.
claims at 4 liability insurers. (Surgery Lives Campaign. Joint Commission 2011 Apr;(21 Suppl 1). doi:pii: 72097.
2006;140:25-33.) Journal on Quality and Patient 72097. Epub 2011 Apr 1. PubMed
Safety. 2007 Aug;33(8):477-484. PMID: 22052245.
26. Leape LL, Brennan TA, Laird N, et
al. The nature of adverse events in 33. Sexton JB, Thomas EJ, Helmreich 42. Mello MM, Kachalia A. Evaluation
hospitalized patients:results of the RL. Error, stress, and teamwork of options for medical malpractice
Harvard Medical Practice Study II. N in medicine and aviation: system reform. Et al.
Engl J Med. 1991;324:377-84. cross sectional surveys. BMJ.
2000;320:745–749. 43. Medical Liability Reform NOW!:
27. ACS March Bulletin article 9. Mello. The facts you need to know to
34. Andrews. An alternative strategy for address the broken medical liability
28. Kohn LT, Corrigan JM, Donaldson MS, studying adverse events in medical system. 2013 ed. American Medical
eds. To err is human: building a safer Care. Lancet 1997; 349: 309–313. Association. GDB:13-0053:PDF:4/13.
health system. Washington, DC.:
National Academy Press, 2000. 35. Wright, Stuart. Adverse Events 44. Klick J, Stratmann T. Medical
in Hospitals: Public Disclosure of Malpractice Reform and Physicians
29. Rogers SO, Gawande AA, et al. Information About Events. in High‐Risk States. Journal of Legal
Analysis of surgical errors in closed January 2010. Studies. 2007;36:S121‐S42.
malpractice claims at 4 liability
insurers. (Surgery 2006;140:25- 36. Mello MM, Studdert DM, Brennan 45. Matsa D. Does Liability Keep the
33). + Weissman JS, et al. Hospital TA. The new medical malpractice Doctor Away? Evidence from
Workload and Adverse Events. Med crisis. N Engl J Med. 2003 Jun Tort Reform Damage Caps. MIT
Care. 2007 May;45(5):448-455. 5;348(23):2281-4. Erratum in: N Engl Department of Economics Working
J Med. 2003 Sep 4;349(10):1010. Paper 2005.
30. A Better Approach to Medical PubMed PMID: 12788991.
Malpractice Claims? The University 46. Encinosa & Hellinger 2005, Hellinger
of Michigan Experience. Richard C. 37. Bal BS. An introduction to medical & Encinosa 2003.
Boothman, Amy C. Blackwell, Darrell malpractice in the U.S. Clin Orthop
A. Campbell, Jr., Elaine Commiskey, Relat Res. 2009 Feb;467(2):339-47. 47. Mello MM, Kachalia A. Evaluation of
and Susan Anderson + Sexton JB, doi: 10.1007/s11999-008-0636-2. options for medical malpractice system
Thomas EJ, Helmreich RL. Error, Epub 2008 Nov 26. PubMed PMID: reform. Washington, DC: Medicare
stress, and teamwork in medicine 19034593; PubMed Central PMCID: Payment Advisory Commission, 2010.
and aviation: cross sectional surveys. PMC2628513. (http://www.medpac.gov/documents/
BMJ. 2000;320:745–749. Apr10_MedicalMalpractice_
CONTRACTOR.pdf ).
28
48. Danzon 1984, Danzon 1986, 59. Avraham R. An Empirical Study 67. Danzon PM. The Frequency and
Sloan, et al 1989, Blackmon & of the Impact of Tort Reforms on Severity of Malpractice Claims.
Zeckhauser 1991, Viscusi & Born Medical Malpractice Settlement Journal of Law and Economics.
2005, Zuckerman, et al 1990, Viscusi, Payments. Journal of Legal Studies. 1984;27:115‐48.
et al 1993. 2007;36:S186‐S229.
68. Danzon PM. The Frequency and
49. Avraham R. An Empirical Study 60. Avraham R. An Empirical Study Severity of Medical Malpractice
of the Impact of Tort Reforms on of the Impact of Tort Reforms on Claims: New Evidence. Law
Medical Malpractice Settlement Medical Malpractice Settlement and Contemporary Problems.
Payments. Journal of Legal Studies Payments. Journal of Legal Studies. 1986;49:57‐84.
2007;36:S186‐S229. 2007;36:S186‐S229.
69. Sloan FA, Mergenhagen PM,
50. Zuckerman, et al 1990. 61. Blackmon G, Zeckhauser RJ. State Bovbjerg RR. Effects of Tort Reforms
Tort Reform Legislation: Assessing on the Value of Closed Medical
51. Zuckerman, et al 1990, Danzon, et Our Control of Risks In: Schuck Malpractice Claims: A Microanalysis.
al 2004, Thorpe 2004, Viscusi & Born P, ed. Tort Law and the Public Journal of Health Politics, Policy and
2005, Sloan 1985, Zuckerman, et al Interest: Competition, Innovation, Law. 1989;14:663‐89.
1990, Blackmon & Zeckhauser 1991, and Consumer Welfare. New York:
Viscusi, et al 1993. W.W. Norton and Company and the 70. Zuckerman, et al 1990.
American Assembly; 1991:272‐309.
52. Zuckerman, et al 1990. 71. Blackmon & Zeckhauser 1991.
62. Viscusi WK, Zeckhauser RJ, Born P,
53. Viscusi, et al 1993. Blackmon G. The Effect of 1980s 72. Sloan 1985.
Tort Reform Legislation on General
54. Mello MM, Kachalia A. Evaluation 73. Thorpe 2004.
Liability and Medical Malpractice
of options for medical malpractice
Insurance. Journal of Risk and
system reform. Et al. 74. Klick & Stratmann 2003.
Uncertainty. 1993;6:165‐86.
55. Ambrose JM, Carroll A. Medical 75. Danzon 1984, Danzon 1986, Sloan,
63. Thorpe KE. The Medical Malpractice
Malpractice Reform and Insurer et al 1989, Zuckerman, et al 1990,
‘Crisis’: Recent Trends and the
Claims Defense: Unintended Effects? Blackmon & Zeckhauser 1991.
Impact of State Tort Reforms.
Journal of Health Politics, Policy and
Health Affairs. 2004;Suppl Web 76. Sloan 1985, Zuckerman, et al 1990,
Law. 2007;32:843‐65.
Exclusives:W4‐20‐30. Blackmon & Zeckhauser 1991,
56. Mello MM, Kachalia A. Evaluation Danzon, et al 2004, Thorpe 2004,
64. Klick J, Stratmann T. Medical
of options for medical malpractice Klick & Stratmann 2003.
Malpractice Reform and Physicians
system reform. Et al.
in High‐Risk States. Journal of Legal 77. Pollack J, Selzer D, Meara JG. The
57. Blackmon G, Zeckhauser RJ. State Studies. 2007;36:S121‐S42. state of medical liability reform. Bull
Tort Reform Legislation: Assessing Am Coll Surg. 2011 Jul;96(7):22-5.
65. Bal BS. An introduction to medical
Our Control of Risks In: Schuck PubMed PMID: 22315898.
malpractice in the U.S. Clin Orthop
P, ed. Tort Law and the Public
Relat Res. 2009 Feb;467(2):339-47. 78. White FJ, Pettiette LW, Wiggins
Interest: Competition, Innovation,
doi: 10.1007/s11999-008-0636-2. RB, Kiss A. Medical Malpractice
and Consumer Welfare. New York:
Epub 2008 Nov 26. PubMed PMID: Review Panels and Medical Liability
W.W. Norton and Company and the
19034593; PubMed Central PMCID: System Cost, Timeliness, and
American Assembly; 1991:272‐309.
PMC2628513. Efficiency: A Cross‐Sectional Study.
58. Viscusi WK, Zeckhauser RJ, Born P, Journal of Empirical Legal Studies.
66. Avraham R. An Empirical Study
Blackmon G. The Effect of 1980s 2008;5:375‐405.
of the Impact of Tort Reforms on
Tort Reform Legislation on General
Medical Malpractice Settlement
Liability and Medical Malpractice
Payments. Journal of Legal Studies.
Insurance. Journal of Risk and
2007;36:S186‐S229.
Uncertainty 1993;6:165‐86.
29
REFERENCES (cont.)
79. Yoon A. Mandatory Arbitration and 90. Mello MM, Kachalia A, Goodell S. 101. Kachalia A, Mello M. New Directions
Civil Litigation: An Empirical Study of Medical malpractice. April 2011 in Medical Liability Reform. NEJM.
Medical Malpractice Litigation in the update. Synth Proj Res Synth Rep. 364(16), 1562-72.
West. American Law and Economic 2011 Apr;(21 Suppl 1). doi:pii: 72097.
Review. 2004;6:95‐134. 72097. Epub 2011 Apr 1. PubMed 102. Mello M, Brennan T. The Role of
PMID: 22052245. Medical Liability Reform in Health
80. White FJ, et al. Care Reform. NEJM. 361(1), 1-3.
91. Danzon PM. The Frequency and
81. Danzon PM. The Frequency and Severity of Medical Malpractice 103. Mello M, Gallagher T. Malpractice
Severity of Medical Malpractice Claims: New Evidence. Law Reform—Opportunities for
Claims: New Evidence. Law and Contemporary Problems Leadership by Health Care
and Contemporary Problems 1986;49:57‐84. Institution and Liability Insurers.
1986;49:57‐84. NEJM. 362(15), 1353-56.
92. Zuckerman, et al 1990, Sloan, et al
82. Danzon 1984, Sloan, et al 1989, 1989, Blackmon & Zeckhauser 1991. 104. Mello MM, Gallagher TH. Malpractice
Zuckerman, et al 1990. Reform—Opportunities for
93. Kilgore ML, Morrisey MA, Nelson LJ. Leadership by Health Care
83. Mello MM, Kachalia A. Evaluation of Tort Law and Medical Malpractice Institutions and Liability Insurers. N
options for medical malpractice system Insurance Premiums. Inquiry Engl J Med. April 15, 2010. 362(15):
reform. Washington, DC: Medicare 2006;43:255‐70. 1353-1356.
Payment Advisory Commission, 2010.
(http://www.medpac.gov/documents/ 94. Zuckerman, et al 1990. 105. Hyams AL, Shapiro DW, Brennan
Apr10_MedicalMalpractice_ TA. Medical practice guidelines
CONTRACTOR.pdf ). 95. Zuckerman, et al 1990. in malpractice litigation: An early
retrospective. J Health Polit Policy
84. Sloan 1985, Zuckerman, et al 1990. 96. Congressional Budget Office. Letter Law. 1996;21(2): 289-313.
from Douglas W. Elmendorf, Director,
85. Mello MM, Kachalia A. Evaluation to Senator John D. Rockefeller IV. 106. Hyams AL, et al.
of options for medical malpractice 2009.
system reform. Et al. 107. Hyams, et al.
97. Pollack J, Selzer D, Meara JG. The
86. Mello MM, Kachalia A. Evaluation of state of medical liability reform. Bull 108. Hyams, et al.
options for medical malpractice system Am Coll Surg. 2011 Jul;96(7):22-5.
reform. Washington, DC: Medicare PubMed PMID: 22315898. 109. Begel J. Maine physician practice
Payment Advisory Commission, 2010. guidelines: Implications for medical
(http://www.medpac.gov/documents/ 98. Pollack J, Selzer D, Meara JG. The malpractice litigation. Maine Law
Apr10_MedicalMalpractice_ state of medical liability reform. Bull Review. 1995;47:69-103. + Smith GH.
CONTRACTOR.pdf ). Am Coll Surg. 2011 Jul;96(7):22-5. A case study in progress: Practice
PubMed PMID: 22315898. guidelines and the affirmative
87. Blackmon & Zeckhauser 1991. defense in Maine. Jt Comm JQual
99. American Medical Association, Improv. 1993;19:355‐362.
88. Avraham R. An Empirical Study Advocacy Resource Center, State
of the Impact of Tort Reforms on Laws Chart I: Liability Reforms, 110. Hyams AL, Shapiro DW, Brennan
Medical Malpractice Settlement accessed at http://www.ama-assn. TA. Medical practice guidelines
Payments. Journal of Legal Studies. org/resources/doc/arc/state-laws- in malpractice litigation: An
2007;36:S186‐S229. chart-1.pdf. early retrospective. J Health Polit
Policy Law. 1996;21(2): 289-313. +
89. Danzon 1984, Sloan, et al 1989, 100. American Medical Association, Matthews JR. Practice guidelines
Blackmon & Zeckhauser 1991, Klick Medical Liability Reform—Now! and tort reform: The legal system
and Stratmann 2003. Accessed at ama-assn.org/go/ confronts the technocratic
mlrnow. wish. JHealth Polit Policy Law.
1999;24(2):275-304.
30
111. Smith GH, et al. 120. Early Detection of Prostate Cancer: 128. Rolph E, Moller E, Rolph JE.
AUA Guidelines. Available at: http:// Arbitration agreements in health
112. Matthews JR. Practice guidelines www.auanet.org/education/ care: myths and reality. Law &
and tort reform: The legal system guidelines/prostate-cancer- Contemporary Problems. 1997;
confronts the technocratic detection.cfm. Accessed August 29, 60:153.
wish. JHealth Polit Policy Law. 2013.
1999;24(2):275-304. 129. Rolph, et al.
121. Gallagher TH, Waterman AD, Ebers
113. Matthews JR. Practice guidelines AG, Fraser VJ, Levinson W. Patients’ 130. Alternatives to litigation are
and tort reform: The legal system and physicians’ attitudesregarding available: The liability insurer’s
confronts the technocratic the disclosure of medical errors. perspective. Bulletin of the American
wish. JHealth Polit Policy Law. JAMA. 2003;289(8):1001-1007. College of Surgeons. March 2013.
1999;24(2):275-304.
122. Metzloff TB. The Future of Binding 131. Metzloff TB. The Future of Binding
114. Matthews JR. Practice guidelines Arbitration in Medical Malpractice. Arbitration in Medical Malpractice.
and tort reform: The legal system Forum: Risk Management Risk Management Foundation
confronts the technocratic Foundation of The Harvard Medical Forum. Vol 23 No. 1. February 2003.
wish. JHealth Polit Policy Law. Institutions. Feb 2003: 23(1): 14-15.
1999;24(2):275-304. 132. Rolph E, Moller E, Rolph JE.
123. Szmania SJ, Johnson AM, Arbitration agreements in health
115. http://leg.mt.gov/content/ Mulligan M. Alternative dispute care: myths and reality. Law &
Committees/Interim/2009_2010/ res-olution in medical malpractice: Contemporary Problems. 1997;
Children_Family/Assigned_Studies/ a survey of emerging trends 60:153.
SJR_35/sjr35-safe-harbor- andpractices. Conflict Resolution Q.
background.pdf. 2008;26:71–96. 133. Metzloff, et al.
116. Mello MM, Kachalia A. Evaluation 124. Szmania SJ, et al. 134. Engalla v. Permanente Medical
of options for medical malpractice Group, Inc., 15 Cal. 4th 951 - Cal:
system reform. Et al. 125. Guadagnino D. Malpractice Supreme Court 1997.
mediation poised to expand.
117. Agency for Healthcare Research Physician’s News Digest. 2004. 135. Rolph E, et al.
and Quality. AHRQ Medical Liability Available at: www.physiciansnews.
& Patient Saf ety Planning Grant: com/2004/04/23/malpractice- 136. US Dept of Health and Human
Final Progress Report. Available at: mediation-poised-to-expand/. Services, Public Health Service,
www.oregon.gov/oha/OHPR/PSDM/ Accessed January 8, 2013. HealthResources and Services
AHRQ_MLPS_Report.pdf Accessed Administration. National Practitioner
February 19, 2013. 126. Blatt R, Brown M, Lerner J. Co- Data BankGuidebook. Rockville,
mediation: A success story at MD: US Dept of Health and Human
118. Kachalia A, Little A, Isavoran M, Chicago’s Rush Medical Center. 2001. Services,Public Health Service,
Crider LM, Smith J. Greatest impact Available at: www.adrsystems.com/ Health Resources and Services
of safe harbor rule may be to news/Co-Mediation.pdf . Accessed Administration;1999.
improve patient safety, not reduce January 8, 2013.
liability claims paid by physicians. 137. Metzloff TB. Resolving malpractice
Health Affairs. 33 No 1 (2014): 59-66. 127. Peeples T, Harris C, Metzlof f T. disputes: imaging the jury’s shadow.
Following the script: An empirical Law & Contemporary Problems.
119. Screening for Prostate Cancer: analysis of court-ordered mediation 1991;54:43.
Current Recommendation. of medical malpractice cases. J Disp
Available at: http://www. Resolution. 2007;1:101-118.
uspreventiveservicestaskforce.
org/prostatecancerscreening.htm.
Accessed August 29, 2013.
31
REFERENCES (cont.)
138. Metzloff, et al + American Arbitration 148. Bovbjerg RR, Raymond B. Patient 157. Holman M, Vidmar N, Lee P. Most
Association Healthcare Policy Safety, Just Compensation and claims settle: Implications f or
Statement. Accessed September 4, Medical Liability Reform. Kaiser alternative dispute resolution from a
2013. Available at: https://www.adr. Permanente: Institute for Health profile of medical-malpractice claims
org/cs/idcplg?IdcService=GET_FILE& Policy. January 2003. in Florida. Law and Contemporary
dDocName=ADRSTG_011014&Revisi Problems. 2011;74(103):30.
onSelectionMethod=LatestReleased. 149. The study is summarized in Randall
R. Bovbjerg and Frank A. Sloan, “No 158. Bismark M, et al.
139. Rolph E, et al. Fault for Medical Injury: Theory and
Evidence,” University of Cincinnati 159. Widman A, Hochberg FA. Federal
140. John J. Fraser, Jr., and the Committee Law Review 67(1):53-123 (Fall 1998). Administrative Health Courts are
on Medical Liability. Technical Unconstitutional: A reply to Elliot,
Report: Alternative Dispute 150. Bismark M, Paterson R. No-Fault Narayan and Nasmuth. Journal
Resolution in Medical Malpractice. Compensation in New Zealand: of Health Politics, Policy and Law.
Pediatrics. 2001;107;60. Harmonizing Injury Compensation, 2008 Aug: 33(4): 799-832 + Elliot
Provider Accountability and DE, Narayan SA, Nasmith MS.
141. Studdert DM, Brennan TA. Toward a Patient Safety. Health Aff. 2006: Administrative “Health Courts” for
Workable Model. Et al. 25(1):278-283. Medical Injury Claims: The Federal
Constitutional Issues. Journal of
142. Studdert DM, Mello MM, Gawande 151. Bismark M, et al. Health Politics, Policy and Law. 2008
AA, et al. Aug: 33(4):761-798.
152. Bismark M, et al.
143. Toulmin JK. Major current as seen 160. Wachter R, Shojania KG. Internal
by the lawyer. In: Wood C, ed. The 153. Mello MM, Studdert DM, Kachalia Bleeding: The Truth behind America’s
influence of litigation on medical AB, Troyen AB. 2006. Terrifying Epidemic of Medical
malpractice. London: Academic Mistakes. New York: Rugged Land,
Press; 1977:82-94 + Cameroon CTM. 154. Bismark M, et al.
2004.
Some aspects of the US medical
malpractice insurance crisis. BR Med 155. Levinson, DR. Adverse Events in
161. Mello MM, Studdert DM, Kachalia
J. 1997;ii:877-80. Hospitals National Incidence Among
AB, Troyen AB. 2006.
Medicare Beneficiaries. DHHS, Office
144. Quam L, Fenn P, Dingwall R. Medical of Inspector General. 2010 Nov. 162. Mello MM, Studdert DM, Moran P,
malpractice in Perspecticve II—The Available at: http://oig.hhs.gov/oei/ Dauer EA. Policy experimentation
Implications for Britain. British reports/oei-06-09-00090.pdf. with administrative compensation
Medical Journal. 1987 June 20: 294; for medical injury: Issues under state
1597-1600. 156. Davis P, et al. Adverse Events in
constitutional law. 45 Harv. J. on
New Zealand Public Hospitals
Legis. (59) 2008.
145. Quam L, et al. I: Occurrence and Impact. New
Zealand Medical Journal 115. 2002; 163. Bismark M, et al.
146. Mello MM, Studdert DM, Kachalia 1167:u271. + Wilson RM, et al. The
AB, Troyen AB. ‘Health courts’ and Quality in Australian Health Care 164. Studdert DM, Brennan TA. Toward
Accountability for Patient safety. Study. Medical Journal of Australia. a Workable Model of “No-Fault”
The Milbank Quarterly. 2006: 1995. 163(9):458-471. + Vincent Compensation for Medical Injury in
84(3):459-492. C, Neale G, Woloshynowych. the US. American Journal of Law and
Adverse Events in British Hospitals: Medicine. 2001: 27: 225-252.
147. Mello MM, Studdert DM, Kachalia Preliminary Retrospective Record
AB, Troyen AB. ‘Health courts’ Review. British Medical Journal. 2001. 165. Mello MM, Studdert DM, Kachalia
322(7285): 517-519. AB, Troyen AB. 2006.
32
166. Studdert DM, Brennan TA. Toward a 172. Davis P, et al. Adverse Events in 180. Landro L. The Informed Patient:
Workable Model. Et al. New Zealand Public Hospitals Preventing the Tragedy of
I: Occurrence and Impact. New Misdiagnosis. The Wall Street Journal.
167. Baker T. The Medical malpractice Zealand Medical Journal 115. 2002; Nov 29, 2006. Accessed online
Myth. Chicago: University of Chicago 1167:u271. + Wilson RM, et al. The September 10, 2013. Available
press + Bovbjer RR, Berenson A. Quality in Australian Health Care at: http://online.wsj.com/article/
Surmounting Myths and Mindsets Study. Medical Journal of Australia. SB116476417544135251.html.
in Medical Maplractice. Washington 1995. 163(9):458-471. + Vincent
DC: Urban Institute:2005. C, Neale G, Woloshynowych. 181. Landro, et al.
Adverse Events in British Hospitals:
168. Brennan T, Leape L, Laird N, Hebert Preliminary Retrospective Record 182. Tappan K. Medical-Malpractice
L, Localio A, Lawthers A, Newhouse Review. British Medical Journal. 2001. Reform: Is Enterprise Liability or No-
J, Weiler P, Hiatt H. Incidence of 322(7285): 517-519. Fault a Better Reform? 46 B.C.L. Rev.
adverse events and negligence in 1095. 2005.
hospitalized patients. Results of the 173. Mello MM, Kachalia A. Evaluation of
Harvard Medical Practice Study I. N options for medical malpractice system 183. Tappan, et al.
Engl J Med. 1991;324(6):370-376. + reform. Washington, DC: Medicare
Localio AR, Lawthers AG, Brennan Payment Advisory Commission, 2010. 184. Tappan, et al.
TA, Laird NM, Hebert LE, Peterson (http://www.medpac.gov/documents/
LM, Newhouse JP, Weiler PC, Hiatt 185. Independent Practice Becoming
Apr10_MedicalMalpractice_
HH. Relation between malpractice Increasingly Rare Among Surgeons.
CONTRACTOR.pdf ).
claims and adverse events due to HPRI Data Tracks. http://www.facs.
negligence. Results of the Harvard 174. Mello MM, Kachalia A, et al. org/fellows_info/bulletin/2011/
Medical Practice Study III. N Engl poley0311.pdf.
J Med. 1991;325(4):245-251. + 175. Clinton HR, Obama B. Making
patient safety the centerpiece of 186. Tappan, et al.
Studdert DM, Thomas EJ, Burstin
HR, Zbar Bl, Orav EJ, Brennan TA. medical liability reform. N Engl J
187. Mello MM, Kachalia A. Evaluation of
Negligent care and malpractice Med. 2006 May 25;354(21):2205-8.
options for medical malpractice system
claiming behavior in Utah and PubMed PMID: 16723612.
reform. Washington, DC: Medicare
Colorado. Med Care. 2000;38(3):250- Payment Advisory Commission, 2010.
260 + Studdert DM, Mello MM, 176. Mello MM, Kachalia A. Evaluation
of options for medical malpractice (http://www.medpac.gov/documents/
Sage WM, DesRoches CM, Peugh Apr10_MedicalMalpractice_
J, Zapert K, Brennan TA. Defensive system reform. Washington, DC:
Medicare Payment Advisory CONTRACTOR.pdf ).
medicine among high-risk
specialist physicians in a volatile Commission, 2010.
188. Boothman RC, Blackwell AC,
practice environment. JAMA. 2005; Campbell DA, Commiskey E,
293(21):2609-2617. 177. Peters. Resuscitating Hospital
Enterprise Liability. Anderson A. A Better Approach to
Medical Malpractice Claims? The
169. Mello MM, Studdert DM, Kachalia University of Michigan Experience.
AB, Troyen AB. 2006. 178. US Congress, Office of Technology
Assessment, Defensive Medicine J Health Life Sci Law. 2009
and Medical Malpractice. OTA-H-602, Jan;2(2):125-59.
170. Bismark M, et al.
Washington, D.C.: US Government
Printing Office, July 1994. pp. 87-88. 189. Kraman SS, Cranfill L, Hamm G,
171. Levinson, DR. Adverse Events in
Woodard T. John M. Eisenberg
Hospitals National Incidence Among
179. Peters. Resuscitating Hospital Patient Safety Awards. Advocacy: the
Medicare Beneficiaries. DHHS, Office
Enterprise Liability. Lexington Veterans Affairs Medical
of Inspector General. 2010 Nov.
Center. Jt Comm J Qual Improv. 2002,
Available at: http://oig.hhs.gov/oei/
Dec; 28(12):646-50.
reports/oei-06-09-00090.pdf.
33
REFERENCES (cont.)
190. Boothman, et al + Kraman, et al. 204. Gallagher TH, et al. 212. Miller SM, Hedrick SF. “Disclose,
Apology and Offer.” Clear and
191. Boothman, et al. 205. Bell SK, Smulowitz PB, Woodward Convincing Evidence. Available at:
AC, Mello MM, Duva AM, Boothman http://mccumberdaniels.wordpress.
192. Boothman, et al. RC, Sands K. Disclosure, Apology, com/2012/08/14/disclosure-
and Offer Programs: Stakeholders’ apology-and-offer/. Accessed
193. Clinton, Obama. Making Patient Views of Barriers to and Strategies August 29, 2013 + Gallegos A.
Safety the Center of Liability Reform. for Broad Implementation. Milbank “Massachusetts hospitals launch
NEJM Perspective. May 25, 2006. Q. 2012 Dec; 90(4):682-705. patient apology program.” American
194. Kachalia A, Kaufman SR, Boothman Medical News. Published on
206. Murtagh L, Gallagher TH, Andrew May 21, 2012. Available at: www.
R, Anderson S, Welch K, Saint S, P, Mellow MM. Disclosure-And-
Rogers MA. Liability claims and costs amednews.com/article/20120521/
Resolution Programs That Include profession/305219941/4/. Accessed
before and after implementation of Generous Compensation Offers
a medical error disclosure program. August 29, 2013.
May Prompt A Complex Patient
Ann Intern Med. 2010 Aug 17; 153(4): Response. Health Aff. Dec 2012; 213. ACS website.
213-21. 31:122681-2689.
214. http://inspiringquality.facs.org/.
195. Clinton, Obama, et al. 207. Mello MM, Senecal SK, Kuznetsov,
Cohn JS. Implementing Hospital- 215. Hall BL, et al. “Does Surgical Quality
196. Kachalia A, Kaufman SR, Boothman
Based Communication-And- Improve in the American College of
R, Anderson S, et al.
Resolution Programs: Lessons Surgeons National Surgical Quality
197. Boothman RC, Blackwell AC, et al. Learned in New York City. Health Improvement Program.” Annals of
Affairs. 33 no 1 (2014): 30-38. Surgery. 205 (3):363-376; Sept 2009.
198. Kraman SS, et al.
208. Boothman RC, Blackwell AC, et al. 216. http://www.escapefiremovie.com/
199. Boothman RC, Blackwell AC, et al. escape-fire-defined.
209. Boothman RC, Blackwell AC, et al.
200. Boothman RC, Blackwell AC, et al. 217. https://mbaa.fuqua.duke.edu/ldi/
210. Mastroianni AC, Mello MM, Sommer press_wagdodge.html.
201. Boothman RC, Blackwell AC, et al. S, Hardy M, Gallagher TH. The flaws
in state ‘apology’ and ‘disclosure’
202. Gallagher TH. A 62-year-old woman laws dilute their intended impact
with skin cancer who experienced on malpractice suits. Health Aff
wrong-site surgery: review of (Millwood). 2010 Sep; 29(9):1611-9.
medical error. JAMA. 2009 Aug 12:
302(6):669-77. 211. Murtagh L, Gallagher TH, Andrew
P, Mellow MM. Disclosure-And-
203. Sack K. Doctors Say ‘I’m Sorry’ Resolution Programs That Include
Before ‘See You in Court. NY Generous Compensation Offers
Times. 2008 May 18. Available May Prompt A Complex Patient
at: http://www.nytimes. Response. Health Aff. Dec 2012;
com/2008/05/18/us/18apology. 31:122681-2689.
html?pagewanted=all&_r=1&
Accessed Aug ust18, 2013.
34
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