By Ashley M. Votruba & Michael J. Saks, Arizona State University, Sandra Day O’Connor College of Law.
The following is based on an article by Ashley M. Votruba and Michael J. Saks, Medical Adverse Events and Malpractice Litigation in Arizona: By the Numbers, soon to be published in the Arizona State Law Journal (45 Ariz. St. L.J. 1537 (2014)).
We have developed a picture of the statistical landscape of medical adverse events in Arizona, and the response of the state’s civil justice system—a picture not otherwise available. Our estimates of various measures are based on findings from studies of hospitals in other states that were explicitly aimed at learning about the number and nature of adverse events in those places, and we used those findings to impute the range of injuries, negligence, losses, and legal system responses in Arizona. The range of findings in studies of other states yields a wide “confidence interval” (of sorts) for our picture of the situation in Arizona.
Of the more than 700,000 people admitted to Arizona hospitals each year, over 20,000 (and perhaps as many as 235,000) become victims of medical adverse events. Approximately half of those injuries cause more than minimal impairment, and over 1,300 (perhaps as many as 5,500) cause death. In all, approximately 30% of those adverse events are the result of negligent care; for deaths, the proportion caused by negligence is considerably larger.
The economic cost of these injuries to victims, families, first-party insurers, and taxpayers comes to at least $1.65 billion, almost certainly more than $2.50 billion, and very possibly several times more than the latter amount.
Of tens of thousands of adverse events and thousands of negligent adverse events, fewer than 500 cases are filed in Arizona annually, and in total fewer than 200 (at most 3% of negligently injured patients) receive any compensation from a doctor’s or hospital’s insurer.
The principal implication of these data for lawmakers is that legal policy might be misdirected at trying to keep the victims of iatrogenic injury from recovering compensation for their injuries in order to keep malpractice premiums low in an effort to attract more doctors to Arizona. (Studies have found that for most types of physicians, malpractice insurance laws have little impact on their geographic migration.) A more productive focus of legislative attention would be to think creatively and constructively about how the law could facilitate a reduction in adverse events.
On its own, the health care industry has had little success in improving patient safety. One likely reason for that failure is that the economic incentives are backwards: more adverse events earn more revenue for the industry. The existing reimbursement structure means that hospitals have little incentive to invest in patient safety when those investments will inevitably reduce income. The motivation to improve safety will have to spring from other sources.
For centuries, tort law had been the feedback loop that provided incentives both economic and psychological for individuals and organizations to seek to conduct their activities at the optimal level of safety. In recent decades, disproportionate legislative attention has been paid to malpractice litigation – and has sharply cut the incidence of malpractice litigation – while paying virtually no attention to medical adverse events.
Regardless of what future legislation does to tort law—and perhaps especially if tort law continues to be dismantled with regard to medical malpractice—something could be done tointroduce sensible economic incentives, or otherwise to bring about improvements in patient safety. By attacking the underlying problems and reducing the high number of adverse events, the total costs created by those injuries would be reduced, the costs externalized to injured patients, families, their insurers, and taxpayers would be reduced, the cost of malpractice liability insurance would be reduced, and the cost of health care would decline (or rise more slowly).
Imagine if Arizona could accomplish what the Institute of Medicine at the start of the 21st Century called upon the nation’s health care industry to accomplish,but which it has made little or no progress in achieving: cutting the number of adverse events in half within a decade. That Arizona health care institutions could be national leaders in patient safety, promoting real, practical, constructive improvements,is not beyond reach.One already is: the Mayo Clinic in Arizona was ranked #1 in the most recent Consumer Reports safety ratings of 2,031 hospitals throughout the United States.