Health care and tort reform: an analysis of flaws in the malpractice liability system and reforms to address them

Thesis (M.A.)--Boston University PLEASE NOTE: Boston University Libraries did not receive an Authorization To Manage form for this thesis or dissertation. It is therefore not openly accessible, though it may be available by request. If you are the author or principal advisor of this work and would like to request open access for it, please contact us at open-help@bu.edu. Thank you.When a patient is bringing a lawsuit, he or she is seeking retributive justice for a harm that they believe was done to them at the hands of a negligent physician. The foundation of malpractice litigation from a legal point of view is that the threat of litigation forces physicians to practice safely and more carefully. Meanwhile physicians believe that malpractice litigation is a punitive approach that seeks to isolate individual cases and assign blame and shame, rather than promote a culture of openness about mistakes and how to avoid them in the future. While the patient safety system relies on transparency and the availability of case information to accomplish its aims, the liability system, as argued by physicians, suppresses the transparency of this information because physicians fear legal retribution in the face of open disclosure. This compromises the foundational dynamic of the physician-patient relationship, and as a result detracts from the quality of care. Studies have found that in punishing the 3 percent of negligent injuries that actually result in malpractice claims, four innocent doctors are punished for every doctor that is actually at fault. Clearly the medical malpractice system is also struggling to maintain an efficient system of corrective justice. If the medical malpractice system seeks to deter negligence, promote patient safety and improve quality and access to medical services in a cost effective manner, then the current system seems to be flawed in meeting these aims. The flaws in this system not only promote a culture of non-disclosure and compromised physician-patient relations but also contribute to a culture of defensive medicine (unnecessary tests) to confirm a diagnosis. With the threat of malpractice litigation ever present, physicians have responded by avoiding high-risk patients and reducing their access to care. Combined, these flaws not only compromise quality and access of care, but also fuel an unjustifiable increase in the costs of care. It is no surprise that studies have found that at least $28 billion is spent each year on an interrelated combination of medical liability litigation and defensive medicine. This statistic, from 2005, compared to total National Health Expenditures from 2005 (1.982 trillion dollars) indicates that this cost was about 1.4% of total National Health Expenditures in 2005. While this may seem like a small percentage of total health care expenditures, at a time when health care costs and declining access are of major public concern, the costs are indefensible because they are not necessarily improving patient safety or health outcomes. As questions linger about waste and inefficiency limiting access and compromising the quality of healthcare, it is necessary to assess the expansive impact that medical malpractice litigation is having on the field of medicine