Failure of Medical Malpractice Law

The problems with the Medical Malpractice system in the US have been well-documented. President Bush has presented proposals to cap punitive damages in malpractice litigation. Other others have decried the fact that despite a large number of negligence cases each year, very few patients bring suit to court. Below are two studies which should give the reader a more informed perception of how malpractice law functions in the United States today.

This first study is by Brennan, Sox and Burstin (1996). These authors find that iatrogenic injuries in New York account for 3.7% of all hospitalizations and negligent iatrogenic injuries account for 1.0% of hospitalizations. Below is their data for the number of people filing suits:

A second report by Studdert, Mello and Brennan (2004) confirm some of the Brennan, et al.’s findings. Citing a Medical Insurance Feasibility Study, 4.6% of all hospitalizations in California involved iatrogenic injury and 0.8% of all hospitalizations involved negligent iatrogenic injuries. These numbers are similar to the 3.7% and 1.0% which Brennan, et. al. estimate.

There are three issues here which I would like to touch on.

The first is that despite conventional wisdom that physician are nearly infallible, 3-5% of all hospitalizations are due to doctor error. One of the greatest risks facing the American medical system is…well…the American medical system. The easiest and most effective way to decrease the error rate is to integrate Information Technology (IT) into the medical field. The Healthcare IT Guy has some good suggestions.

Malpractice suits are not common. Less than 3% of people who receive negligent physician care actually sue. One must note that it is difficult for a patient to determine if negligence has occurred. ‘Do I feel sick because the treatment is not working or is this the doctor’s fault?’

Although only one in a thousand people who receive no medically induced injury sue, these ‘no injury’ cases make up over half of the malpractice caseload.

Brennan, Sox, Burstin (1996) “Relation Between Negligent Adverse Events and the Outcomes of Medical-Malpractice Litigation” New England Journal of Medicine Vol 335 (26).