Chapter 4.A--Medical Mistakes, and Malpractice Litigation

Additional discussions of medical error and measuring and improving quality can be found at Sheila Leatherman and Douglas McCarthy, Quality of Health Care in the United States: A Chartbook (2002); Kristin Madison, The Law and POlicy of Health Care Quality Reporting, 31 Campbell L. Rev. 215 (2009).

Empirical insight into the nature and types of medical error comes from a study of individual versus system factors leading to errors in a large sample of medical malpractice claims.  Michelle M. Mello and David M. Studdert, Deconstructing negligence: the role of individual and system factors in causing medical injuries, 96 Geo. L.J. 599-623 (2008).  These authors found that "the causality of medical injuries is multifactorial and weblike" and that "it is difficult to cleanly separate individuals and their failures from the larger environments or systems in which they work."   The authors concluded that "the most promising opportunities for injury prevention lie at the organizational level. Yet tort incentives currently run to individuals, not organizations."

For more on apology and disclosure of medical errors, see Aaron Lazare, The healing forces of apology in medical practice and beyond, 57 DePaul L. Rev. 251-265 (2008); Thomas Gallagher, David Studdert& Wendy Levinson, Disclosing Harmful Medical Errors to Patients, 26 JAMA 2713 (2007); Richard Bourne, Medical malpractice: should courts force doctors to confess their own negligence to their patients? 61 Ark. L. Rev. 621-671 (2009).

More evidence of general rationality of medical liability system comes from studies of which cases settle for how much.   As summarized in Philip G., Peters, Jr., What we know about malpractice settlements, 92 Iowa L. Rev. 1783-1833 (2007), "weak claims are much less likely to result in a settlement payment than strong claims. Only 10% to 20% of the weak cases result in a payment, and it is typically only a token amount, such as forgiveness of any unpaid doctor bills. Strong cases settle at a much higher rate (85% to 90%) and for a much larger average payment. Borderline cases fall in the middle."

Here is a good practical discussion of how juries think, and therefore how to communicate with them in the courtroom:  Thomas M. O'Toole, Bruce A. Boyd and Theodore O. Prosise, The anatomy of a medical malpractice verdict, 70 Mont. L. Rev. 57-91 (2009).

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