The U.S. tort system as a solution to compensation for medical errors is an abysmal failure. It’s unfair to doctors and it’s unfair to patients.
Here are a few statistics to make the point:
- Every year 400,000 patients are killed by medical errors and even more are injured. But, less than 2% receive compensation through suits. 98% never file suits.
- 80% of suits against doctors fail.
- 50% of compensation awards are paid to lawyers.
- The average time from filing suit to winning compensation is 3.5 years.
The practice of “defensive medicine” is well known. The fear of suits has caused many doctors to order more tests than are necessary. Even the AMA estimates the unnecessary tests cost between $84 and $151 billion each year. Worse yet is the effect on medical records: doctors make records “look good in court” by leaving out embarrassing details — making the job of quality improvement much more difficult.
There can be no other conclusion: the U.S. justice system is incapable of providing compensation to the vast numbers of injured patients and it stands in the way of quality improvement.
Other countries have much better systems. One that really stands out is Finland. They have separated compensation from accountability and quality improvement. Compensation is decided by a compensation board — compensation is often paid in as little as 2 weeks. Physicians can readily admit an error and say “I’m sorry” and go a step further and actually help patients get compensation.
The Fins have a strong quality improvement program which can change the medical system that allows errors to happen and force practice changes as needed — the primary goal is to reduce errors, not to punish doctors (except for criminal behavior).
The money spent in the U.S. for malpractice insurance both by doctors and hospitals, and the fees for lawyers would be much better spent in a compensation system like Finland. Current efforts at U.S. “tort reform” are aimed at reducing suits and thus reducing compensation. The suits remain unfair to doctors and inadequate to serve injured patients. “Tort reform” should be changed to “tort elimination” then replaced with a compensation board type system.
This is an excellent time to change the tort system because the U.S. is on the verge of universal health insurance. The question of who will pay the cost of health care error is “insurance” rather than bankruptcy court. By setting up a compensation system more attention can be directed to fair compensation and much stronger quality improvement.