Executive Times






2006 Book Reviews


The Medical Malpractice Myth by Tom Baker




(Highly Recommended)




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The facts Tom Baker presents in his new book, The Medical Malpractice Myth, may lead you to rethink your position on what needs to be done in this area of healthcare. Along with me, you’ve been led to believe that a big problem in medicine is the skyrocketing premiums for medical malpractice insurance, because of huge settlements, often with undeserving claimants. Baker presents five key points that prove through facts that this impression is bogus:

1.      there is more medical malpractice

2.      the real costs are from lives lost through medical malpractice

3.      insurance premiums for medical malpractice are cyclical and uneven

4.      big payments to undeserving claimants are rare

5.      proposed remedies will distract from the real problem, which is injuries to patients from medical malpractice

It’s always enjoyable and worthwhile to read a book that presents facts that overwhelm rhetorical claims. Here’s an excerpt, from Chapter 2, pp. 24-31:




Experts think that most serious medical mistakes either hap­pen in the hospital or have consequences that put people in the hospital. For this reason, researchers who want to learn about medical malpractice usually look in hospitals. When they do, they use one of two approaches. Either they review a large number hospital records from many hospitals and count the number of mistakes. Or they watch doctors and nurses in one hospital, real time. Both approaches have strengths and weaknesses.

The hospital record approach has two main strengths. Researchers can easily preserve the anonymity of the hospitals. This makes it easier to get hospitals to participate. And the researchers can look at records from many hospitals. This allows them to make a strong claim that the rate of errors they find in their research is the same as the rate of errors in hospitals generally. The hospital record approach also has an obvious weakness. Namely, the researchers look only at the hospital records. Common sense tells us (and the research we will review confirms) that not all mistakes get noted in the record. Also, not all mistakes take place in the hospital.

The strength of the hospital observation approach comes from its very nature. Watching doctors and nurses in the hospital gives researchers a much more complete understanding of what happens. But we can never be sure how the hospital they are studying compares to other hospitals. Over­coming that weakness requires disclosing information about the hospital, making it more likely that we could figure out which hospital it was. Few hospitals today are willing to open themselves up to intense public scru­tin\, especially when it is possible that other people could “break the code” and use that information against the hospital.

Over the next few pages I will review the leading hospital records stud­ies and the leading hospital observation study. As we will see, all the stud­ies demonstrate that a surprisingly large amount of medical malpractice takes place in American hospitals.


The California Medical Insurance Feasibility Study

The first important hospital record study was the mid-1970s California study I mentioned in the first chapter. The California Hospital Associa­tion and the California Medical Association commissioned this study during the first medical malpractice insurance crisis. They called the study the Medical Insurance Feasibility Study because the goal was to evaluate whether it would be feasible to create a no—fault medical insurance alternative to medical malpractice litigation.4

The California study took place so long ago that it is difficult to know for sure, but the California team apparently expected to confirm two as­pects of the 1970s version of the medical malpractice myth. The Califor­nia researchers expected to find that medical malpractice was not as big a problem as lawyers had claimed. And they expected to confirm that the price of a no-fault system would be less than medical malpractice premi­ums doctors and hospitals were paying.5

What they found was very different.

They found that doctors and hospitals injured what must have been to them an almost unbelievably large number of patients: one out of every twenty patients discharged from the hospital. Even more striking, one out of every ten of the injured patients died as a result. This meant that doc­tors and hospitals injured at least 140,000 hospital patients in California in 1974 and killed nearly 14,000 of them.6

The California researchers not only found an epidemic of medical in­juries, they also found an epidemic of medical malpractice. They con­cluded that one out of every six medical injuries resulted from malprac­tice. This means that doctors and hospitals committed malpractice on 24,000 California patients in 1974. The California researchers also found that the more severe the injury was, the more likely that it was caused by malpractice. As many as 8o percent—four out of every five—of the most seriously injured patients were the victims of medical malpractice.7

Thus, the research clearly contradicted the assumption that injured pa­tients and their lawyers were exaggerating the malpractice problem. The research also contradicted the assumption that doctors in California could save money by adopting a no-fault approach to compensating patients with medical injuries. That assumption was based on the belief that med­ical malpractice was not a widespread problem. Once the researchers dis­covered how many medical injuries there were, a no-fault approach was almost guaranteed to be more expensive than what they had. Under a no-fault approach, all of the injured patients would qualify for compensation, not just the patients who were injured by negligence.

Although the California researchers did not publish any cost calcula­tions, Wharton professor Patricia Danzon later used their results to show that there is no way that a broad no-fault system would be less expensive that the existing tort system. As she demonstrated, only a very small per­centage of injured patients were compensated through medical malprac­tice claims—somewhere between one in seventy five and one in a hundred of those who were injured. This means that at least seventy-five times more patients would be eligible for no-fault compensation than were then collecting in tort.8

If even a quarter of the eligible people actually filed claims, no-fault would be much, much more expensive than tort, almost no matter how meager the benefits or how much the cost savings that resulted from elim­inating the tort system’s negligence requirement. So it is easy to see why the sponsors of the California study—the California Medical Association and the California Hospital Association—did not immediately start lob­bying for a new no-fault medical-injury compensation fund.

Putting all this together, what can we say? We can say that the Cali­fornia study showed that the real medical malpractice problem was med­ical malpractice, not medical malpractice litigation. It showed that by far the largest share of medical malpractice costs fall on injured patients and their families, not on doctors and hospitals. And we can say that the re­sponse of the California Hospital Association and the California Medical Association to the study was disappointing. The associations put the study on the shelf and turned their priorities elsewhere.


The Harvard Medical Practice Study

The next, and most important, hospital record study was the New York study I also mentioned in the first chapter. In the mid-198os, during the second medical malpractice insurance crisis, the State of New York com­missioned a team of doctors, public health researchers, and lawyers from Harvard to study medical injuries in New York and to evaluate approaches to compensating injured patients. Because the Harvard Medical Prac­tice Study has been the most important study for the malpractice policy debates, I will spend more time explaining how they conducted their re­search.

The Harvard team had the benefit of both the California study and Pro­fessor Danzon’s analysis. So they knew that they were likely to find a lot of malpractice. They also knew that the conventional wisdom among doctors was that medical malpractice was a very rare event and that there were more medical malpractice lawsuits than cases of medical malpractice. So they knew that they had to put together a bulletproof research design that would produce a credible and very conservative measure of medical mal­practice injuries.

The Harvard researchers began by selecting a random sample of 31,000 hospital records from over fifty hospitals. They reviewed the records in two stages. In the first stage nurses reviewed all 31,000 records using a de­tailed screening form. The form contained a very specific list of conditions that could indicate that the patient was injured from medical treatment. For example, did the patient develop an infection shortly after surgery, or was the patient readmitted to the hospital soon after being sent home? If the record did not contain any of the evidence that the nurses were look­ing for, the hospitalization was classified as not involving a medical management injury and the records for that hospitalization did not receive any further review.

Nearly 8,000 of the 31,000 records—about one in four—contained ev­idence of a possible medical injury.9 Each of these 8,000 records advanced to the second stage of the review process.

For the second stage, the researchers taught doctors how to use hospi­tal records to identify medical management injuries and how to evaluate whether the injuries resulted from substandard care. Two doctors re­viewed each record using a special form prepared to guide the review. The doctors worked independently, so that no one doctor’s conclusions af­fected any other doctor’s conclusions. This is one of the hallmarks of good research.

Each doctor first confirmed that the nurse who had reviewed the hos­pital record had accurately identified one of the conditions indicating a possible medical injury. If not, the research team classified the record as a “no injury” case, and set the record aside. If the nurse had correctly inter­preted the record, the doctor gave the hospitalization an “adverse event” score from one to six indicating the strength of the evidence of a medical management injury.10

If that adverse-event score was two or higher, the doctor filled out a sec­tion of the review form titled “Is there evidence for negligence?” The first step in the negligence section asked the doctor to answer “yes” or “no” to the following question: “Was this adverse event possibly due to a reason­ably avoidable error, or carelessness by either an individual or medical care system, or both?” If the doctor answered “no,” the review was over, and the team classified the hospitalization as a “no negligence” case. Impor­tantly, if either doctor answered “no,” the research team classified the in­jury as nonnegligent.

If the answer to the first negligence question was “yes,” the doctor an­swered questions about the circumstances. The questions ended by asking the doctor to reconsider whether the injury was possibly due to negli­gence.” If the doctor changed his or her mind, the review was over, and the team classified the hospitalization as a no-negligence case. Otherwise the doctor gave the hospitalization a negligence score from one to six indicat­ing the strength of the evidence for negligence (like that for medical man­agement injuries). A score of six meant “virtually certain.” A score of one meant “little or no evidence.”

A supervisor took the two doctors’ forms, checked to be sure that they had looked at the same records, and then calculated the averages of their confidence scores. The supervisor classified the hospitalization as an in­jury case only if the average of the doctors’ confidence scores on that point was more than 3.5. Similarly, the supervisor classified the injury as negli­gent only if the average of the reviewers’ confidence scores on that point was more than 3.5. The practical effect of this 3.5 cutoff is that either doc­tor could veto the decision of the other. If one doctor classified the case as a no-injury case, that was it. And if one doctor said that the injury did not result from negligence, that also was it.

This was a very conservative approach to identifying negligent medical management injuries, an approach that would be trusted by doctors. Doc­tors designed and supervised the study Doctors trained the nurses who carried out the first-stage review. Doctors conducted the second-stage re­view And the review process had a variety of safeguards against a mistaken conclusion that there was a medical management injury or negligence (and essentially no safeguards against a mistaken conclusion that there was not negligence).12 This means that we can be reasonably confident that there is even more medical malpractice than the Harvard team reported.

It is important to be clear that I am not criticizing the Harvard team. They knew that their results would be scrutinized and that organized medicine stood ready to attack even the slightest weakness in their data or analysis suggesting that they were exaggerating the extent of medical malpractice. Given that political reality, it was perfectly reasonable to de­sign the study to withstand the anticipated attack. After all, even their very conservative estimates showed that medical malpractice was a much big­ger problem than almost anyone had thought.

The results were essentially the same as the earlier California results. The Harvard team found that doctors and hospitals injured about one out of every twenty-five hospital patients and that there was negligence in about one out of every four of those cases.

This means that there were at least 27,000 injuries from medical mal­practice in hospitals in New York during 1984. As in the California study, more serious injuries were more likely to be the result of negligence. Ex­trapolating to the United States as a whole, the researchers concluded that there are “over 150,000 iatrogenic fatalities annually, more than half of which are due to negligence.”13

By comparison, there were only about 3,800 claims filed in New York under malpractice insurance policies covering the year 1984.14 That means that there were more than seven malpractice injuries for every medical malpractice claim.


The Utah and Colorado Validation Study

During the 1990s two significant research projects found even higher rates of medical management injuries than either the Harvard or the Cal­ifornia studies. One of these projects was a large-scale hospital record study in Australia. The second was an intensive, hospital-based observa­tion study in Illinois.15 I will discuss these studies shortly Although the definitions used in the two studies are not exactly the same, a fair reading of their results is that one out of every six hospital patients suffers from some kind of medical management injury, a substantial proportion of which should have been prevented. This was an even more disturbing fig­ure than the already disturbing result from the California and New York studies.

In light of these other studies, the Harvard team decided to conduct a second study to check their earlier results. In order to avoid the objection that their results were unique to New York, they conducted the second study in a different part of the country: Utah and Colorado. This time the study year was 1992.

As before, the team obtained a sample of records from almost every hospital in the region. They put the records through a two-stage review similar to the one in New York. They improved their ability to eliminate “false positives” (mistaken conclusions that there was a medical injury or negligence). And for the first time they took measures to reduce “false negatives” (mistaken conclusions that an injury did not result from neg­ligence).16

The Utah and Colorado results were essentially the same as the results from New York and California. The team found a slightly lower rate of medical injuries—3 percent in Utah and Colorado in 1992 as compared to 5 percent in California in 1974 and 4 percent in New York in 1984. But they also found that a larger proportion of the medical injuries resulted from negligence, so that the overall rate of negligent injuries was approxi­mately the same—I percent.17

The slight differences between the results of the two Harvard studies make sense in light of the changes they made in the hospital record review process. The new Utah/Colorado review process did an even better job of eliminating false positives, so it makes sense that they found a lower rate of injuries. But the Utah/Colorado review process also did a better job of re­ducing the chance that negligence would be overlooked, so it makes sense that they found that more of the injuries resulted from negligence. All in all, the differences in the New York and Colorado/Utah results probably reflect the changes in the review process more than differences in the true rate of injuries or negligence.

Details aside, both studies showed that there is much more medical malpractice than most people think. Imagine if a new drug made one out of a hundred people sick. How long would it last on drugstore shelves? Or if one out of a hundred planes or buses crashed? Or if one out a hundred lawn mowers sent people to the emergency room? Yet the Harvard studies represent the low end of estimates. Other well—regarded studies suggest that there is even more—a lot more—malpractice.


In most fields, there’s an intense focus on preventing errors. In medicine, Baker contends that many mistakes are buried, and lessons are not necessarily learned. “The real medical malpractice problem is medical malpractice. It is not pretty to say, but doctors and nurses make preventable mistakes that kill more people in the United States every year than workplace and automobile accidents combined.” (p. 157) Medical malpractice insurance premiums are a fraction of those for auto and workers compensation insurance. Baker provides a framework for solving this problem, and while he’s not wedded to his own solution, his facts in The Medical Malpractice Myth point out the perils of trying to solve the wrong problem.



Steve Hopkins, January 25, 2006



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The recommendation rating for this book appeared

 in the February 2006 issue of Executive Times


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