Medical liability cases have not always been such a prominent topic of discussion and interest for legislatures, insurance companies, healthcare professionals, attorneys, and the media, but the United States has been captivated by the topic¹. A Johns Hopkins study estimated that more than 250,000 Americans die each year due to errors by their healthcare providers², and over the course of 40 years, physicians spend nearly 51 months with an open, unresolved medical malpractice claim³.

Lawsuits alleging medical negligence are brought under American tort law, but they differ from a standard negligence claim in that their biggest question is determining what type of duty a plaintiff-patient was owed by a defendant-provider⁴. The answer to that question is dependent on the relationship of the healthcare provider and the patient, the foreseeable risk involved, and policy considerations⁵. For example, it is generally accepted that a physician owes a duty of care to his patients, but that same physician generally does not have a duty to nonpatients⁶. As a matter of tort law, the physician owes his patients a duty of care because they have a physician-patient relationship and because there is foreseeable harm that could result from his negligence. However, the same physician does not owe a duty to nonpatients because it could subject that physician to lawsuits from unforeseeable parties⁷.

That the physician owes a duty to his patient but none to nonpatients can also be explained by competing policy considerations concerning how to best provide quality healthcare. Quality healthcare is the delivery of healthcare services in a way that favorably influences the outcome of a patient’s health problem. Analyzing the quality of health care requires a multifaceted approach for defining and measuring quality health care⁸. Though this list is far from exhaustive, healthcare quality can be assessed by the following metrics:

• Appropriateness: This measures the extent to which the potential health benefits from a medical service exceed its health risks as assessed by the healthcare provider and to the patient.
• Gaps in Medical Care: This metric assesses the quality of healthcare across multiple settings and populations.
• Patient Safety Outcomes: This metric assesses the reduction of medical errors to prevent complications, injuries, and deaths in the provision of healthcare.
• Patient-Centeredness: This dimension of healthcare quality measures the degree to which care is respectful of and responsive to individual patient preferences, needs, and values.

Healthcare quality matters to patients because it ultimately determines the value of the care that the patients receive, improves the care they get, and ultimately, improves patient health.

Patient safety is one of the major public policy considerations underpinning medical malpractice laws in the United States⁹. American courts recognize the medical licensing system alone is inadequate to protect patient safety. After a physician is licensed, the licensing process alone provides no assurance of a physician’s professional competence and therefore does not assure the public of quality healthcare or patient safety¹⁰. The medical system’s reliance on peer reviews is similarly inadequate to safeguard patient safety because of the problems inherent to acting as both colleague and accuser¹¹. The economic realities of healthcare and the nature of the relationships between healthcare providers incentivize against blowing the whistle on a colleague or competitor¹².

One of the intended rationales of awarding damages in malpractice suits is to deter healthcare providers from committing medical errors in the future. Damages improve patient safety by economically incentivizing healthcare providers to avoid medical errors in the future by improving interoffice procedures and making appropriate investments¹³.

The Relationship Between Medical Malpractice Laws and Healthcare Quality

Interpreting the impact of medical malpractice laws on healthcare quality is challenging. Evidence concerning the degree to which medical malpractice laws improve healthcare quality is limited. Implementation of damage caps—or limitations on the money juries can award plaintiff-patients in medical malpractice suits—does not significantly impact a healthcare provider’s incentives to deliver quality healthcare¹⁴.

Medical Malpractice Laws Requiring More Stringent Standards Increase Healthcare Quality

The standards to which physicians are held in medical malpractice lawsuits impact healthcare quality. In some jurisdictions, the legal standard for physician’s conduct is that they must possess the requisite skill and knowledge as is possessed by the average member of the medical profession in the community in which he practices. However, other jurisdictions require the physician to possess the requisite skill and knowledge as is possessed by the average member of the medical profession nationally¹⁵. The national standard is a higher, more stringent standard than the community standard.

Studies have found that increasing the legal standard for the physician’s conduct from the local community to that of the medical profession nationally does improve healthcare quality¹⁶. Helling v. Carey—a seminal case in medical malpractice law—is a prime example of the ways in which the law can increase the standard to which physicians are held. In that case, the Washington Supreme Court heard testimony that the defendant-ophthalmologist had complied with the standard of ophthalmologists by declining to give a routine pressure test to people under 40 years of age. The Washington Supreme Court held that simply following the standards of ophthalmologists was inadequate and that the defendant-ophthalmologist acted negligently by failing to give the simple, harmless pressure test to the patient. The Court improved healthcare quality by elevating the standards to which all ophthalmologists must perform their medical duties when it found the defendant-ophthalmologist was negligent¹⁷.

Defensive Medicine Isn’t a Cost of Medical Malpractice Laws

“Defensive medicine” is best understood as healthcare providers unnecessarily ordering costly tests, procedures, or visits to ward off lawsuits or provide a legal defense if a lawsuit is filed¹⁸. Defensive medicine can also come in the form of a physician declining to perform a procedure or conduct a test for fear of a future malpractice suit. To the extent that defensive medicine occurs, it is thought to increase healthcare costs by requiring patients to pay for tests and procedures they do not need. The total cost of defensive medicine is unknown, but most estimates put that number between $50-$65 billion—less than 3% of total healthcare costs¹⁹.

Advocates of tort reform argue that it could decrease the practice of defensive medicine, thereby decreasing medical costs. The efficacy of tort reform is shaped by the form of the reform: capping non-economic damages has an indeterminate effect on healthcare spending, but capping attorney fees can decrease physician spending on insurance²⁰. This research is based on studies of different forms of tort reform that was implemented in various states across the U.S.

Although the frequency of defensive medicine practice is unclear, there are recorded cases of it. In 2004, a physician saw a patient with back pain, cellulitis on his leg, and a leg abscess. The patient’s neurologic exam was normal, so the patient was treated and discharged without ever receiving an MRI. The physician was served a year later, and only then did he learn that he had missed an epidural abscess that paralyzed the patient and led to his death nine months later. Six years later, the same physician saw a patient with thoracic spine pain, a normal neurologic exam, and cellulitis on his leg. This time, the physician ordered an MRI as a result of the previous missed diagnosis and resulting lawsuit; he was practicing defensive medicine²¹.

Actionable Insights for Healthcare Professionals, Policymakers, & the Public

As previously stated, the daily practices of healthcare professionals and the decisions they make for their patients are impacted by medical malpractice laws. Providing healthcare quality that prioritizes patient safety and medical error is a tall order, and the threat of a medical malpractice lawsuit only compounds that stress.

Healthcare professionals can help prevent malpractice suits by admitting medical malpractice cases are not all frivolous, and it is possible for them to arise in the future. Healthcare professionals function best when they’re prepared and operating within the limits of their skill and training. To that end, they can avoid medical error, promote patient safety, and ensure healthcare quality by staying prepared and within their domain.

Policymakers and legislatures are faced with the unenviable task of balancing patient safety and restitution to those injured by medical negligence against competing concerns of physician efficacy, healthcare costs, and the prevention of defensive medicine. They must promote healthcare quality while performing this balancing act. Promoting healthcare quality can be done by raising the standard of care in medical malpractice suits from local standards to national ones for the physician, and defensive medicine can, to some degree, be minimized by capping attorney fees.

Finally, if you suspect that you have been a victim of medical malpractice, then it is imperative you contact a licensed attorney as soon as possible. A consultation with an attorney will help you understand your legal rights, but it is imperative that you do not attempt to self-diagnose yourself. If you decide to file a lawsuit, then it will be crucial that you retain any documentary evidence you have of your case and provide it to your attorney. Medical malpractice laws are designed to promote patient safety by requiring legal standards for healthcare providers and by compensating those victimized by a provider’s failure to meet those legal standards.

Conclusion

Balancing the competing policy considerations which underpin the law of medical malpractice can be difficult. Patients are entitled to the standard of reasonable care from their healthcare providers, and a provider’s failure to meet that standard is actionable medical negligence for which the patient should be compensated. Still, healthcare providers have intensely difficult jobs, and the threat of liability under medical malpractice laws will continue to inform the decisions they make—regrettably leading to defensive medicine.

Patients, providers, and policymakers must continue to think critically about the balance of these competing interests and how best to maintain that balance to prevent medical error, ensure patient safety, and continue improving healthcare quality. Given the limited research into the relationship between medical malpractice laws and healthcare quality, more quantitative studies are necessary for these groups to realize an ideal outcome. Additionally, further research on the relationship between legislative changes to the standard of care owed to patients in medical malpractice lawsuits and healthcare quality, as well as the relationship between specific tort reform laws, is necessary.

Footnotes

1. Medical liability tort system, 1 Am. Law Med. Malp. § 1:3.
2. McMains, Vanessa. “Johns Hopkins Study Suggests Medical Errors Are Third-Leading Cause of Death in U.S.” HUB. May 3, 2016. Link
3. Seabury, et al. “On Average, Physicians Spend Nearly 11 Percent of Their 40-Year Careers with an Open, Unresolved Malpractice Claim.” RAND. Jan. 2013. Link
4. McNulty v. City of New York, 100 N.Y.2d 227, 232, 792 N.E.2d 162, 166 (N.Y. 2003) (“[T]he threshold question in determining liability is whether the defendant owed plaintiff a duty of care. The question is a legal one for the courts to resolve, taking into account ‘common concepts of morality, logic and consideration of the social consequences of imposing the duty.’”); Smits as Trustee for Short v. Park Nicollet Health Services, 979 N.W.2d 436, 445 (Minn. 2022) (“Whether [defendant] owed a legal duty of care to [plaintiffs] is a question of law. The question of whether to impose a legal duty is ‘one of policy.’”).
5. McNulty, 100 N.Y.2d at 232, 792 N.E.2d at 166; Park Nicollet Health Services, 979 N.W.2d at 445.
6. McNulty, 100 N.Y.2d at 232, 792 N.E.2d at 166.
7. Id.
8. Risk of liability as a deterrent to malpractice, 1 Am. Law Med. Malp. § 1:4; Schwartz, William B., M.D., and Komesar, Neil K., J.D., Ph.D. Doctors, Damages and Deterrence: An Economic View of Medical Malpractice. The New England Journal of Medicine, Vol 298, No. 23, pp. 1282–1289 (June 8, 1978).
9. Risk of liability as a deterrent to malpractice, 1 Am. Law Med. Malp. § 1:4.
10. “Quality of Care: in Depth.” RAND. Link
11. Id.
12. Id.
13. Id.
14. Id.
15. D. Schwartz, William B., M.D., and Komesar, Neil K., J.D., Ph.D. Doctors, Damages and Deterrence: An Economic View of Medical Malpractice. The New England Journal of Medicine, Vol 298, No. 23, pp. 1282–1289 (June 8, 1978); Risk of liability as a deterrent to malpractice, 1 Am. Law Med. Malp. § 1:4.
16. Moore v. Board of Trustees of Carson-Tahoe Hospital, 88 Nev. 207, 212, 495 P.2d 605, 608 (1972) (“Licensing, per se, furnishes no continuing control with respect to a physician’s professional competence and therefore does not assure the public of quality patient care. The protection of the public must come from some other authority.”).
17. Helling v. Carey, 83 Wash.2d 514, 516-19, 519 P.2d 981, 982-83 (Wash. banc 1974).
18. Defensive medicine and Good Samaritan statute laws, 1 Am. Law Med. Malp. § 1:9.
19. Katz, Eric D., M.D. Defensive Medicine: A Case and Review of Its Status and Possible Solutions. v.3 Clin. Pract. Cases Emerg. Med. Nov. 2019. Link
20. Mello MM, Kachalia A. Medical malpractice: evidence on reform alternatives and claims involving elderly patients: a report for the Medicare Payment Advisory Committee. 2016. Link
21. Katz, Eric D., M.D. Defensive Medicine: A Case and Review of Its Status and Possible Solutions.

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