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Friday, September 10th 2010

Justice & Malpractice

You should go read Dr. Mello and his team’s new review of the cost of the current medical malpractice system. And then the criticism of such over at The Health Care Blog.

The most important component of malpractice costs is defensive medicine. The Harvard authors put this at $46 billion, or nearly 80 percent of the total, but this is pure guesswork. Researchers cannot agree on the extent of defensive medicine. The Harvard authors base their estimates on seminal studies by Kessler and McClellan. Their work is seminal largely because it was first, not because it was definitive, and later studies often find far less evidence of defensive practice. The Harvard authors try to be conservative by using the low end of the Kessler/McClellan cost estimates. But truth would have been better served if they had stated that the cost of defensive medicine could just as easily be $16 billion or $76 billion.

Dr. Dranove, writing at THCB, has some fine points. As he says any full evaluation of tort reform must consider not only what it may save in medical costs but what it may do to the quality of medical care delivered.

What we need now is evidence on how tort reform affects quality. Until we get that evidence, all the hullabaloo about the new Health Affairs study is really much ado about nothing.

An important consideration, to be sure. I think there’s another factor. How competent at justice the current medical malpractice system is. To be sure, the belief amongst providers is that the rare claim that goes to a jury trial routinely goes against the physician. The evidence over jury verdicts and settlements in malpractice claims clearly shows that they favor the provider. But such isn’t necessarily justice.

80% of verdicts for the defendant in cases of poor outcomes after poor care is unacceptable. So is 20% of verdicts for the plantiff in cases where the level of care should never be classified as malpractice.

Malpractice reform should not only seek to improve quality and lower costs but, just as importantly, make the system more just.