Module 2 case-informed consent and medical malpractice: torts and

© 2013 Sohn, publisher and licensee Dove Medical Press Ltd. This is an Open Access article
which permits unrestricted noncommercial use, provided the original work is properly cited.

International Journal of General Medicine 2013:6 49–56

International Journal of General Medicine

Negligence, genuine error, and litigation

David H Sohn
Department of Orthopedic Surgery,
University of Toledo Medical Center,
Toledo, OH, USA

Correspondence: David Sohn
Division of Sports Medicine,
Department of Orthopedic Surgery,
University of Toledo Medical Center,
3000 Arlington Avenue, Toledo,
OH, 43614, USA
Tel +1 419 383 4000
Email [email protected]

Abstract: Not all medical injuries are the result of negligence. In fact, most medical injuries
are the result either of the inherent risk in the practice of medicine, or due to system errors,

which cannot be prevented simply through fear of disciplinary action. This paper will discuss the

differences between adverse events, negligence, and system errors; the current medical malpractice

tort system in the United States; and review current and future solutions, including medical

malpractice reform, alternative dispute resolution, health courts, and no-fault compensation

systems. The current political environment favors investigation of non-cap tort reform remedies;

investment into more rational oversight systems, such as health courts or no-fault systems may

reap both quantitative and qualitative benefits for a less costly and safer health system.

Keywords: medical malpractice, tort reform, no fault compensation, alternative dispute
resolution, system errors

Introduction
Everyone wants a safer medical system. Each year, thousands of medical errors are

made, resulting in injuries to patients who may deserve compensation.1 The chal-

lenge, however, is to design a system that compensates injury, correctly identifies

medical error, and learns from adverse events to build systems that eliminate errors.

In this paper, the author will (1) discuss the differences between adverse events,

negligence, and system errors; (2) discuss the current medical malpractice tort

system; and (3) review current and future solutions, including medical malpractice

reform, alternative dispute resolution (ADR), health courts, and no-fault compensa-

tion systems.

Adverse events, negligence, and system errors
Adverse events vs negligence
It is important to understand one fundamental concept – there is a difference between

adverse events and negligence. An adverse event is an injury occurring during the course

of medical management.1 For example, Patient A has pneumonia and is prescribed

Antibiotic X. The patient develops an unforeseeable allergic reaction to Antibiotic X,

causing short-term kidney failure and hospitalization. This kidney injury is an adverse

advent. This is not, however, negligence. Negligence is the failure to provide a standard

level of care or, in other words, the delivery of substandard care. In the above scenario,

it would have been negligence if the physician had neglected to check the chart, which

stated that Patient A was allergic to Antibiotic X.

Dovepress

submit your manuscript | www.dovepress.com

Dovepress
49

R E v I E w

open access to scientific and medical research

Open Access Full Text Article

http://dx.doi.org/10.2147/IJGM.S24256

International Journal of General Medicine 2013:6

Many adverse events occur in the practice of medicine, but

relatively few are due to negligence. For example, a Harvard

Public Health Study estimated that only 27% of adverse events

were due to negligence.1 Medicine is not an exact science,

and complications are an inherent feature of any procedure

or medical intervention. For example, surgical procedures

generally carry a 3%–4% risk of infection. Sterile techniques,

preoperative cleansing, and prophylactic antibiotics are all

used in an attempt to minimize infection. Nonetheless, even

in the most capable hands and under the best of circumstances,

infection can occur. This would be an adverse event, but not

one due to a medical error. It would instead be a risk inherent

in the practice of medicine. Similarly, pneumonia may result in

a patient’s death despite him receiving the proper antibiotics,

blood clots may develop despite administration of proper

anticoagulation agents, and nerve injuries may result despite

properly performed procedures.

It is important to differentiate between adverse events

and medical errors, because punishing adverse events per se

would have a chilling effect on treating complex conditions

or performing difficult procedures,2–4 such as liver transplants

or neurosurgery. It would also discourage care of high-risk

patients with multiple comorbidities. An ideal oversight

system would, therefore, not punish adverse events, but rather

identify and target medical errors.

System errors versus negligence
Another important concept to understand is the difference

between negligence and system error. Negligence, as

discussed above, is failure to meet a standard level of care.

It is an incorrect decision. For example, it is considered

negligent if the standard of care for kidney failure is dialysis,

and this is not ordered. A system error, on the other hand,

is an occasional, simple human error. Deterrents cannot

reduce these errors, because they are made unintentionally.

From time to time, humans unwittingly make errors, such

as mistaking salt for sugar when baking, mistaking an

oxygen tank for a nitrogen tank during airplane maintenance,

or mistaking “1.5 mg” for “15 mg” or “15 µg” when
administering medication. This is not a decisional error, and

so is not negligence. It is considered a system error because

good organizations recognize the human error component

and safeguard against it. Health care providers misread

handwriting occasionally because they are human; however,

a good system could reduce system errors by instituting

computerized medication orders. Another example of

a system safeguard is the use of ID bracelets to prevent

confusion between patients with similar names.

According to a landmark 1999 Institute of Medicine

paper, To Err is Human, most medical errors are the result of

unavoidable human error, which can only be reduced through

system changes.5 Punishment for errors will not reduce future

errors, to ensure a safer system. It might, however, incentivize

workers to hide rather than report these errors. An analogy

is made to the airline industry; the operation of a health care

system is similar to running an airport. In both cases, many

people work together toward a common goal, and the best

systems are those that acknowledge that, due to the human

element, there will be occasional errors. Accordingly, the

best systems will implement checks and rechecks in order

to catch and contain these errors. For example, even if they

are diligent, airline workers might occasionally mistake an

oxygen tank for a nitrogen tank. It is not effective to punish

workers for making these errors, as they are not the result of

laziness or negligence, but are simply mistakes that people

may make. A better solution would be to use different

couplers for the two gases, so that a nitrogen tank could not be

hooked up in place of an oxygen tank. The safest systems are

those that acknowledge human error and build in safeguards

on a systemic level.

Negligence is actually rarely present in most alleged

cases of medical malpractice.6 In one study in New York,

adverse events were reported in 3.7% of all hospitalizations.

In over 70% of these cases,1 however, no negligence was

present. In another closed claim study performed at Harvard,

only 15% of medical malpractice cases actually contained

negligence.6 And in a 2005 Congressional Report, over

80% of malpractice cases reviewed actually contained no

negligence.8 One explanation for this is that health care

providers, from medical assistants to nurses to physicians,

tend to be highly motivated individuals.5 Rather than being

motivated by money, most health care practitioners tend to

be motivated by professional or moral ideals to deliver high

quality care and to “do no harm.” As such, negligence is not

usually at the heart of most medical errors.

It is important to differentiate between system errors and

negligence errors to identify those errors that can be deterred

through the legal system (negligence) and those errors that

can be reduced only with system safeguards (system errors).

A rational oversight system will devote more energy towards

preventing the more commonly made errors.

The current medical malpractice
tort system
Currently, in the United States, medical errors are prosecuted

under the tort system. The tort system seeks to deter

submit your manuscript | www.dovepress.com

Dovepress

Dovepress

50

Sohn

International Journal of General Medicine 2013:6

negligence by monetarily punishing negligent providers

and compensating the injured parties with those monies.

According to Prosser and Keeton on Torts the goals of the

litigation system are to (1) compensate plaintiffs injured

by negligence; (2) discourage the practice of negligence;

and (3) exact corrective justice.9 A classic application of

the tort system is deterrence of known product dangers by

corporations. For example, if ABC Motor Company has

knowledge that a gas tank is positioned in a precarious

location, and yet chooses to continue production of this

vehicle, injured parties will likely sue ABC Motor Company

for their negligent practice. If a verdict is issued in favor of

the plaintiffs, the goals of tort will be served. The plaintiffs

will be compensated for their injuries, ABC will be deterred

from similar future negligent behavior, and justice will be

served, at least monetarily.

Some important limitations must be understood here.

First, the litigation system can only deter negligence and

compensate patients for injuries attributable to negligence.

This means that the majority of patients experiencing adverse

events will have no recourse through the litigation system.

Consider that only 27% of adverse events occur through

medical error, and that only a fraction of those medical errors

are attributable to negligence, and it is quickly apparent that

very few patients who experience adverse events will be

entitled to compensation.1 This, however, does not prevent

them from suing. Many patients sue when there is injury,

failing to understand the fundamental differences between

an adverse event and a medical error, or the difference

between system errors and true negligence. The result is an

overwhelming amount of time and money spent on fruitless

litigation that serves neither to compensate the injured

patient nor to improve the health care system. Over 60%

of all filed lawsuits in medical malpractice cases end up

summarily dismissed as having no grounds to even have

been filed in the first place.4 And, according to a claim trend

analysis from malpractice insurers, less than 1% of all filed

medical malpractice claims actually end up in a verdict for the

plaintiff.10 Even in these cases, most of the award is actually

consumed by the attorney and administrative costs.7,11 So of

the $76 to $126 billion spent each year in the United States

on medical malpractice litigation,12 very little actually ends

up truly compensating the patient. In other words, litigation

is expensive and inefficient.

Second, the medical field is different from the business

world. Most business decisions are driven by a cost-benefit

analysis. Without the threat of lawsuits, it is possible that

a cost-benef it analysis would favor the introduction of

marketable yet unsafe products. The tort system in such

situations helps create a safer society by increasing the

“cost” side of the analysis, and discouraging the production

of unsafe products. Health care providers, however, are not

trained to engage in cost-benefit analysis. Rather, physicians

are driven by professional ethics to first “do no harm” and

second to heal the patient. According to the 1999 Institute

of Medicine report, To Err is Human, physicians as a group

are already ethically motivated to avoid negligent behavior,

and the threat of litigation does not add to this motivation.5

Instead, litigation has a negative effect on physician behavior.

On a personal level, it creates an environment of fear and

anxiety, disrupting the physician–patient relationship and

causing physicians to fear patients as potential litigants.

On a societal level, litigation causes physicians to practice

defensive behaviors and avoid offering high-risk services,

such as obstetrics or neurosurgery. Both situations are

undesirable.

A more rational system would focus more on the goals of

compensation and improvement, rather than on punishment

for those who err. Reform efforts have been largely focused

on trying to make the medical malpractice system more

efficient. The main goal over the past 30 years has been to

eliminate frivolous lawsuits, either by reducing the incentive

to sue or by making it less likely for an unfounded suit to

prevail.

Recent reform efforts
Caps on noneconomic damages
The first generation of tort reform efforts began in the

mid-1970s, with the placement of caps on noneconomic

damages in medical malpractice cases. Caps on noneconomic

damages are monetary limits on the amount of money that

can be awarded by a jury for injuries that are not economic

in nature. Economic damages are damages that are readily

calculated, such as medical expenses or lost wages. For

example, if a patient whose salary is $50,000 per year loses

three working years to injury, the lost wages are $150,000.

This is an economic injury, and there is no limit or cap on this

type of economic damage. Noneconomic damages are much

more difficult to calculate, and therefore, more contentious

in court. It is difficult, for example, to place a dollar value on

“pain and suffering” or “loss of consortium” with a spouse.

From a trial lawyer’s perspective, much of the value of a

case comes from the noneconomic damages. There are two

reasons for this. First, lawyers often work on billable hours.

A trial lasting three years, therefore, will generate more fees

than a trial lasting only one year. Gray or nebulous items are

submit your manuscript | www.dovepress.com

Dovepress

Dovepress

51

Negligence, genuine error, and litigation

International Journal of General Medicine 2013:6

often fought over for long periods during trial, so difficult

terms, such as “pain and suffering,” naturally extend the

life of a trial. Indeed, a RAND corporation analysis of cases

before and after implementation of caps on noneconomic

damages shows that trial times were reduced from three

years to one year after implementation of caps in California.13

In other words, noneconomic damages generate increased

attorney fees. Second, the potential value of the case is greater

with noneconomic damages. When a lawyer assesses a case,

the potential value of the jury verdict is calculable before the

decision to pursue litigation. An infected total knee case might

be thought of in terms of medical expenses for treatment of

the infection ($10,000), as well as the months of lost wages

while the patient is recovering from the infection ($40,000).

The economic damages in this case would be $50,000. The

noneconomic damages, however, are unknown, and could

be argued to an unlimited level. A lawyer might demand, for

example, $1 million for the pain and suffering of having to

undergo further treatment, or not being able to consort with

a spouse during the second recovery period. Suddenly, the

value of each and every adverse event, whether with merit or

not, is potentially high enough to seek litigation.

Caps on noneconomic damages originated in 1975, when

the State of California was undergoing a medical malpractice

crisis. A boom in the value of jury verdicts in medical

malpractice fueled a spate of litigation against doctors for

adverse events. This, in turn, raised malpractice insurance

premiums. In some cases, physicians could no longer afford

malpractice insurance, and closed their practices. In other

cases, insurers themselves decided that physicians were

too risky to insure, and terminated coverage. The end result

was the loss of thousands of physicians from the health care

workforce, which threatened California citizens’ access to

care. An emergency session of the California legislature

convened to address the problem, resulting in the passing of

the Medical Injury Compensation Reform Act (MICRA). This

law instituted a cap of $250,000 on noneconomic damages

in medical malpractice cases. The results were dramatic.

Increases in malpractice premiums slowed to one-fourth of

that of the rest of the nation. Trials were settled in one-third

of the time, which ironically led to more money for the

plaintiffs, as billable hours for attorneys sharply decreased.13

And, most interestingly, physicians actually ordered fewer

tests and procedures. Overall medical expenditure decreased

between 5% and 9%.14 According to Stanford economists,

implementation of caps on a national level would result in

savings on such defensive medicine by $83 to $151 billion

per year.14

Caps, however, are not a complete solution. The central

flaw of the litigation system is that it can only deter negligence.

Since the overwhelming majority of medical injuries are not

based in negligence, the impact of litigation reducing adverse

events is necessarily limited. Caps on noneconomic damages

may limit some of the inefficiency and waste of the litigation

system, but they are still based on litigation. Similarly, caps

do not make a safer system, just a less expensive one. Second,

the widespread implementation of caps are likely not feasible

politically. Caps on noneconomic damages are vigorously

opposed by trial lawyer political action committees, which

have given over $30 million to politicians to oppose caps

on a national level. While caps have been passed in places

at a state level, such as in California, Texas, and Ohio, on a

federal level, they have been consistently blocked.15 In 2003,

a national cap on noneconomic damages bill was supported

by a Republican-controlled House of Representatives and

a Republican President, but was thwarted by a unanimous

block of Democratic Senators. More recently, the Patient

Protection and Affordable Care Act (PPACA), despite

recommendations from the Congressional Budget Office16

and a President Obama-appointed health care committee17 to

include caps, was not. In fact, an earlier version of PPACA

actually contained a protection clause for attorney fees. This

has left many observers feeling that while effective, caps may

not be a politically feasible means of effecting widespread

tort reform.

Alternative dispute resolution
The second generation of tort reform involves ADR, which

refers to any of a number of dispute resolution techniques that

help plaintiffs and defendants resolve conflicts outside of the

courtroom. One advantage of ADR is that it is better suited

to adverse events than is the tort system. Litigation can only

compensate patients who are harmed by negligence. ADR

can potentially reach all patients who experience adverse

events, whether due to negligence or not. For example, many

hospitals have embraced “early apology” programs, where

physicians and hospital administrators reach out to the injured

patient and express sympathy about the adverse event. This

protects the natural physician–patient relationship as well as

encourages dialogue. Perhaps the adverse event was simply

a known complication, which may be relayed to the patient

who can then save time and focus their efforts on healing

rather than pursuing litigation. Perhaps the adverse event

was the fault of the physician; in such cases, both parties

can agree early on that the physician was at fault and use

time and money that would have otherwise been spent on

submit your manuscript | www.dovepress.com

Dovepress

Dovepress

52

Sohn

International Journal of General Medicine 2013:6

contentious litigation (most of which would go to attorneys)

and divert the money to the plaintiff directly. Or perhaps the

adverse event was the result of unavoidable human error,

and investment in system safeguards needs to be made to

avoid future events.

The most popular ADR techniques are mediation and

arbitration, which differ in both their binding nature and

their formality. Mediation is simply negotiation that is

aided by an impartial mediator. It is non-binding, meaning

that if a settlement cannot be reached, the plaintiff may

pursue his claim in court. Arbitration is more involved. It is

more court-like, with an arbiter hearing both sides much like

a judge would. Similarly, there are rules for how and when

to talk, and how to present evidence. Most importantly, it is

binding, meaning that the judgment of the arbiter is final and

litigation is not an option.

Mediation has had excellent success where implemented,

both in terms of cost-containment and satisfaction for both

parties. Two notable success stories include the mediation

programs at Drexel and the University of Pittsburgh.

They have reported 85% and 88% successful resolution of

conflicts without litigation, respectively. In the case of the

University of Pittsburgh, this led to an estimated savings

of $1 million in the first year of implementation alone.18

Mediation also boasts over 90% satisfaction from both

parties.19 From the plaintiff ’s perspective, mediation offers

more flexibility than litigation, which only offers money as

a remedy. For example, rather than just receiving money,

plaintiffs may wish for a scholarship to be established in their

family’s name, or would like their deceased’s story told to

incoming nurses or medical students to help prevent similar

adverse events in the future. Mediation often suits plaintiffs’

needs better, as many sue for nonmonetary reasons, such

as the desire for disclosure of information or the desire to

hear an apology or explanation of what went wrong. In one

survey of plaintiffs, money was actually tertiary to these

concerns.19 These very aspects, however, are often withheld

in a litigious environment.

Arbitration, on the other hand, is more acrimonious and

expensive, being more trial-like than mediation. Arbitration

is longer and more expensive than mediation, but much

shorter and less expensive than jury trials.18–24 Like jury

trials, they can only offer money as a form of redress,

eliminating the more creative and satisfying solutions

offered in mediation. Furthermore, arbiters are criticized

by plaintiffs and defendants alike for always seeking

compromise, rather than justice.24 For example, even in

a case where there is no negligence, arbiters tend to offer

something to the plaintiff, just for the sake of compromise.

However, arbiters do boast 100% avoidance of litigation,

making arbitration very appealing to malpractice insurers

and hospital systems, as even a successful defense can

cost close to $100,000.25 One increasingly popular form

of arbitration is the pretreatment arbitration agreement,

where patients agree to arbitration as a condition of being

seen in the f irst place. Although these have withstood

early legal challenge,26 caution is advised before engaging

in pretreatment arbitration agreements. First, it may be

awkward to discuss adversarial postures during the initial

physician–patient visit. Second, it may actually be in the

physician’s favor to preserve the right to a jury trial. The fact

that mediation is non-binding is probably more advantageous

to the physician defendant than to the plaintiff. Because the

majority of lawsuits actually do not involve negligence,

many physicians who are sued wish for the opportunity

to clear their name. Jury trials, after all, overwhelmingly

result in verdicts for the physician.25 They may be forced,

however, by their insurance carrier to accept a settlement,

which may be less expensive and less risky than a jury trial.

This not only may be offending to an innocent physician,

but may have real repercussions, as all settlements are

mandatorily reported to the National Practitioner Data Bank

(NPDB). This affects future medical malpractice rates and

the ability to obtain practicing privileges in other states or

hospitals.

Another advantage of ADR is that, unlike caps on

noneconomic damages, it is politically feasible. Neither trial

lawyers nor politicians oppose ADR. In fact, PPACA, while

not containing any tort reform itself, does allocate $50 million

for research into non-cap remedies for medical malpractice

reform. This would include ADR.

The main obstacle to ADR implementation is the

mandatory reporting requirement of the NPDB. The NPDB,

as discussed above, records any settlement involving a

physician. This, however, has a chilling effect on the use of

settlements. Consider a case where a patient develops a blood

clot and dies after a total hip arthroplasty, despite proper

anticoagulant use. There is no negligence in this case, but

it is still an adverse event, and both hospital and physician

may wish for compensation for the family. To do so would be

an admission of guilt, since a settlement would be recorded

against the physician in the NPDB. Thus, the physician may

actually prefer to be sued, win the case, and have nothing

recorded against him. This, however, would cost time and

money, and result in no compensation for the patient’s family.

One possible solution to this problem would be to create an

submit your manuscript | www.dovepress.com

Dovepress

Dovepress

53

Negligence, genuine error, and litigation

International Journal of General Medicine 2013:6

exception to the mandatory NPDB reporting requirement,

where reporting of non-negligent settlement agreements are

not required.

Health courts
Health courts are specialized tribunals where medical

malpractice cases would be decided by medically savvy

judges or tribunals rather than juries. They would be similar

to Workman’s Compensation courts, which take normal

injury claims out of the tort system and put them into the

administrative system. The concept of health courts has

recently been revived by the Harvard School of Public Health

as a means of deterring frivolous litigation and preventing

miscarriages of justice.27 One problem for juries is that they

can be confused by the difference between adverse events and

negligence. Part of this may be due to the scientific questions

involved in a medical case, and part of it may be due to the

tendency of a jury to be overly swayed by a patient who invites

sympathy. Consider, for example, the medical condition of

cerebral palsy. Cerebral palsy is a developmental disorder

with a varied spectrum of mental and physical impediments.

Sometimes a cerebral palsy patient is so impaired that he is

wheelchair bound, incapable of speech, and totally dependent

on others for activities of daily living. Such a condition may

be sympathy-evoking, but may not be caused by birthing

trauma. According to a joint study by the American Academy

of Pediatricians and the American College of Obstetricians

and Gynecologists, the “vast majority” of cerebral palsy

cases originate in utero, well before childbirth. One trial

lawyer in North Carolina, however, was very successful at

confusing jurors about the true underlying medical issues,

focusing their attention instead on the plight of the patients

and their burdened families, and won over 30 multimillion

dollar verdicts, including one $23 million judgment for

what is essentially a naturally occurring and unpreventable

condition.3 Health courts would likely not be swayed by such

tactics, and knowing this, even unethical trial lawyers would

likely not invest their time in such frivolous lawsuits. This

would reduce the burden of litigation on the medical system,

and perhaps (similar to caps on noneconomic damages)

reduce the amount of defensive medical expenditure.

Another advantage of health courts are that, like ADR,

they are politically feasible. Health courts have already been

specifically and publicly endorsed by both Democrats and

Republicans.28 President Obama, who resisted even his own

health care committee’s recommendation17 for caps as a

means of significant national savings, has already appropriated

$50 million for investigation into health courts.29

The main obstacle to implementation of health courts is

legal theory. Several constitutional issues have been raised

about the legitimacy of health courts30 based on constitutional

rights to jury trial and claims that creation of such courts

overreach Congressional power. These claims have not been

worked out specifically for health courts, but the recent Supreme

Court decision regarding PPACA likely extrapolates authority

for Congress to create health courts through the Commerce

Clause. And, similar to Workman’s Compensation, there likely

is enough of a public interest in swift and expert adjudication

of medical malpractice issues to remove them from jury trials.

However, these issues still have to be adjudicated.

No-fault compensation
Several countries overseas have taken the administrative

question one step further, and created no-fault compensation

schedules for medical malpractice injuries.31 New Zealand,

Sweden, and Denmark have replaced litigation altogether with

administrative compensation systems, where patients who

sustain an avoidable medical injury can apply directly, without

an attorney, for compensation. An expert medical panel

reviews the case and decides on compensation. There are two

enlightened features in these systems. First, compensation can

be given to the injured parties even without finding fault or

negligence. This immediately broadens the scope of patients

who are entitled to compensation, a fundamental improvement

over negligence. Second, information from claims is used to

analyze opportunities for system improvements. Thus, there is an

acknowledgement that most medical errors are actually system

errors, as well as the determination of mechanisms to seek

system improvements. In this way, no-fault compensation

systems are the most rational compensation systems currently

available: there is acknowledgement that most adverse events

are not the result of negligence, so compensation is not tied to

finding of fault; there is an inherent understanding that most

errors made in medicine are system errors, which allows the

oversight system to actually flow into efforts to create safer

systems; and both juries and attorneys are eliminated from

decision making, leading to more expert adjudication and more

efficient delivery of compensation to the actual plaintiffs.

Two foreseeable obstacles remain in the implementation

of no-fault compensation. First, the same legal legitimacy

objections raised against health courts would likely be raised

against no-fault compensation systems. Second, these may

prove to be politically non-feasible. If trial lawyer interests

vigorously oppose caps on damages, they would certainly

oppose removal of attorneys altogether from the medical

malpractice oversight system. Still, there may be precedents

submit your manuscript | www.dovepress.com

Dovepress

Dovepress

54

Sohn

International Journal of General Medicine 2013:6

that mitigate both arguments. Several states have instituted

no-fault compensation systems in the arena of automobile

accidents, removing these from the tort system altogether.

Even if Motorist A is completely at fault for damaging

Motorist B, Motorist B may not sue for damages in some

states simply because these states wished to clear these

cases from the administrative dockets of their courtrooms.

A much stronger public interest exists in removing medical

malpractice cases from tort to no-fault compensation

schedules for plaintiffs, health care practitioners, and society

as a whole. Plaintiffs gain because a wider group of patients

can find compensation, a greater percentage of funds can go

to the actual parties, and claims are processed faster than with

litigation. Physicians gain because they are not being sued

and can focus on providing better care rather than engaging

in defensive practices. The nation gains because data can

be collected to identify system shortcomings to build safer

systems, rather than spending over $100 billion12 per year

on litigation that mostly goes to attorneys.

Summary
Only a fraction of medical injuries actually arise from

negligence. Most injuries either result from system errors, or

are inherent risks in the practice of medicine. Compensation

for such injuries, therefore, cannot rationally come from

the tort system, which compensates only for errors arising

from negligence. A more rationale form of compensation

would move away from blame-based systems, such as tort

and medical malpractice, which are costly and inefficiently

compensate patients, and would instead move toward more

compensation-based systems, such as ADR and no-fault

systems. The cur rent political environment favoring

investigation of non-cap tort reform remedies, and investment

into more rational oversight systems, such as health courts or

no-fault systems, may reap both quantitative and qualitative

benefits for less costly and safer health systems.

Disclosure
The author reports no conflict of interest in this work.

References
1. Brennan TA, Leape LL, Laird NM, et al. Incidence of adverse events

and negligence in hospitalized patients: results of the Harvard Medical
Practice Study I. 1991. Qual Saf Health Care. 2004;13:145–151;
discussion 51–52.

2. Thornton T, Saha S. The need for tort reform as part of health care reform.
J Long Term Eff Med Implants. 2008;18:321–327.

3. Edwards’ malpractice suits leave bitter taste. The Washington Times.
August 16, 2004. Available at http://www.washingtontimes.com/
news/2004/aug/16/20040816-011234-1949r/?page=all#pagebreak.

4. Weinstein SL. Medical liability reform crisis 2008. Clin Orthop Relat
Res. 2009;467:392–401.

5. Kohn LT, Corrigan JM, Donaldson MS. To Err is Human: Building a
Safer Health System. Washington, DC: Institute of Medicine; 1999.

6. Weiler PC. A measure of malpractice: medical injury, malpractice
litigation, and patient compensation. Cambridge, Mass.: Harvard
University Press; 1993.

7. Localio AR, Lawthers AG, Brennan TA, et al. Relation between malpractice
claims and adverse events due to negligence. Results of the Harvard
Medical Practice Study III. N Engl J Med. 1991;325:245–251.

8. The Perverse Nature of the Medical Liability System. In: Committee JE,
editor. 2005. Available at http://www.house.gove/jec/publications/109/03-
21-21-05.pdf.

9. Keeton PWP, editor. Prosser and Keaton on Torts, 5th ed: West
Publishing, St Paul, MN, USA: 1984.

10. The Physician Insurers Association of America. Claim Trend Analysis;
2004. Rockville, MD, USA.

11. Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and
compensation payments in medical malpractice litigation. N Engl J
Med. 2006;354:2024–2033.

12. Confronting the New Health Care Crisis: Improving Health Care Quality
and Lowering Costs By Fixing Our Medical Liability System. In: Services
UDoHaH, ed. 2002. Available at aspe.hhs.gov/daltcp/reports/litrefm.pdf.

13. Pace NM, Zakaras L, Golinelli D. Capping non-economic awards in
medical malpractice trials: California jury verdicts under MICRA.
Santa Monica, CA: RAND Corporation; 2004.

14. Kessler D, McClellan M. Do doctors practice defensive medicine? The
Quarterly Journal of Economics. 1996;111:353–390.

15. Ballasy N. Howard Dean: Democrats left tort reform out of health
care bill because they feared ‘taking on’ trial lawyers. CNSNewscom.
August 26, 2009. Available at http://www.cnsnews.com/node/53126.

16. Congressional Budget Office: Analysis of the effects of proposals to
limit costs related to medical malpractice (Tort Reform). [webpage
on the Internet]. Available at http://www.cbo.gov/ftpdocs/106xx/
doc10641/10-09-Tort_Reform.pdf.

17. National Commission on Fiscal Responsibility and Reform. [webpage
on the Internet]. Available at http://www.fiscalcommission.gov/sites/
fiscalcommission.gov/files/documents/CoChair_Draft.pdf.

18. Creo RA, Shogan JO, Turner CT. Malpractice case alternative dispute
resolution. Physician’s News Digest. Nov 2005. Available at http://www.
physiciansnews.com/2005/11/13/malpractice-case-alternative-dispute-
resolution/.

19. Szmania SJ, Johnson AM, Mulligan M. Alternative dispute resolution
in medical malpractice: A survey of emerging trends and practices.
Conflict Resolution Quarterly. 2008;26:71–96.

20. Dauer EA. Alternatives to litigation for health care conflicts and claims:
Alternative dispute resolution in medicine. Hematology/Oncology
Clinics of North America. 2002;16:1415–1431.

21. Fraser JJ Jr. American Academy of Pediatrics: Technical report:
Alternative dispute resolution in medical malpractice. Pediatrics.
2001;107:602–607.

22. Greer TE. Alternative dispute resolution in medical liability cases.
AAOS Now. Jul 2009.

23. Metzloff TB. Alternative dispute resolution strategies in medical
malpractice. Alaska Law Review. 1992;9:429–457.

24. Rosengard LA, Parker M. Medical malpractice mediation: A “healthy”
resolution for patients, doctors and insurance companies. The ADR
Advisor. Winter 2010. Available at http://www.stradley.com/newsletters.
php?action=view&id=524.

25. Hartwig R. Medical malpractice insurance jury verdict research: Insurance
information institute; 2008. Available at http://server.iii.org/yy_obj_data/
binary/729103_1_0/Medmal.pdf. Accessed March 16, 2008.

26. Webb RJ. New Jersey court green lights provider-patient arbitration
agreements. Healthcare Neutral ADR Blog. Califon, NJ: Healthcare
Neutral, LLC 2010. Available at http://www.healthcareneutraladrblog.
com/2010/08/articles/healthcare-arbitration/new-jersey-court-green-
lights-providerpatient-arbitration-agreements/.

submit your manuscript | www.dovepress.com

Dovepress

Dovepress

55

Negligence, genuine error, and litigation

International Journal of General Medicine

Publish your work in this journal

Submit your manuscript here: http://www.dovepress.com/international-journal-of-general-medicine-journal

The International Journal of General Medicine is an international,
peer-reviewed open-access journal that focuses on general and internal
medicine, pathogenesis, epidemiology, diagnosis, monitoring and treat-
ment protocols. The journal is characterized by the rapid reporting of
reviews, original research and clinical studies across all disease areas.

A key focus is the elucidation of disease processes and management
protocols resulting in improved outcomes for the patient.The manu-
script management system is completely online and includes a very
quick and fair peer-review system. Visit http://www.dovepress.com/
testimonials.php to read real quotes from published authors.

International Journal of General Medicine 2013:6

27. Mello MM, Studdert DM, Kachalia AB, Brennan TA. “Health courts”
and accountability for patient safety. Milbank Q. 2006;84:459–492.

28. Health courts continue to gain bipartisan support from 2012 presi-
dential candidates. New York: PR Newswire 2012. Available at http://
www.prnewswire.com/news-releases/health-courts-continue-to-gain-
bipartisan-support-from-2012-presidential-candidates-144266955.
html.

29. The White House Blog. [webpage on the Internet]. March 2, 2010.
Available at http://www.whitehouse.gov/blog/2010/03/02/president-
obama-follows-thursdays-bipartisan-meeting-health-reform-0.

30. Widman A, Hochberg FA. Federal administrative health courts are
unconstitutional: a reply to Elliott, Narayan, and Nasmith. J Health
Polit Policy Law. 2008;33:799–832.

31. Mello MM, Kachalia A, Studdert DM. Administrative compensation
for medical injuries: lessons from three foreign systems. Issue Brief
(Commonw Fund). 2011;14:1–18.

submit your manuscript | www.dovepress.com

Dovepress

Dovepress

Dovepress

56

Sohn

1. Publication Info 2:
2. Nimber of times reviewed: