5 Aspects of Medical Malpractice in the United States

Laura Joszt

On Thursday, the House of Representatives passed a bill that would reform medical malpractice by capping noneconomic damages at $250,000. Supporters say the reform would reduce frivolous claims and prevent doctors from practicing costly defensive medicine.
Here’s a look at 5 aspects of medical malpractice in the United States.
1. State variety in malpractice
Typically, the states have more control over tort law, which is one reason why some Republicans don’t support the malpractice reform bill. As a result, states have varied widely in regulations and procedures for punishing wrongdoing among doctors. A study from the University of Michigan Medical School found that the percentage of doctors who are disciplined or pay a malpractice claim can be as much as 4 times less in some states compared with others.
This new bill would impose a federal standard on what is typically determined by states.
2. Malpractice prevents some physicians from cutting out low-value care
Physicians who have advocated for tort reform in the area of malpractice have argued that they practice defensive medicine, which can drive up costs as they order extra tests and take other defensive steps to avoid being sued.
The Choosing Wisely initiative aims to reduce unnecessary, expensive tests, but a study published in The American Journal of Managed Care® found that surgical specialists were more concerned about malpractice lawsuits than being cost conscious when providing care.
3. Cost of defensive care
Defensive medicine is considered the overuse of tests and procedures because of fear of malpractice litigation. There are estimates that put the cost of defensive medicine at $46 billion annually in the United States, and a report published in JAMA in 2014 studied 3 hospitals in Massachusetts to determine the cost of defensive medicine. The researchers found that more than one-fourth of patient orders were at least partially defensive medicine, but that they only accounted for 13% of hospital costs.
4. Communication is key
A report from CRICO found that 30% of malpractice cases filed between 2009 and 2013 cited some form of miscommunication. This miscommunication can occur between providers or between the provider and the patient. Common communication issues included a miscommunication about the patient’s condition, poor documentation, failure to read the medical record, and no/wrong results given to the patient.
5. Pathways drive lower cost care
One tool that is being used to combat malpractice suits is clinical pathways, which require detailed documentation of any deviation to avoid liability. For instance, a recent study in the Journal of Oncology Practice found that clinical pathways could successfully drive physicians to choose a less costly regimen when efficacy and toxicity of different treatment regimens for metastatic colorectal cancer are comparable.
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