Executive Summary
Damage caps and patient safety indicators might decrease patient safety, recent research suggests. Lessening the potential consequences of an error might make physicians less careful.
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Patient safety ratings decrease after damage caps.
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Mortality does not increase after tort reform, but injuries do.
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Hospitals should emphasize other reasons to maintain patient safety.
Risk managers want to lower malpractice damages and improve patient safety, but recent research suggests that those goals might be at odds with each other. Legislation that caps malpractice damages actually might lead clinicians to make more errors. The reason? They relax, because they know the potential consequences are limited.
Malpractice damage caps and patient safety indicators (PSIs) have become popular tools in state tort reform efforts, but researchers have found evidence that in states where caps on damages had been passed or recently come into existence, patient safety ratings decreased.
Research by Bernard S. Black, JD, Chabraja Professor at the Northwestern University Law School and Kellogg School of Management in Chicago, found increases in the rates of the PSIs after tort caps were implemented. The researchers attribute the increases to “consistently gradual relaxation of care or failure to reinforce care standards over time.” They went on to say, “The decline is widespread, and applies both to aspects of care that are relatively likely to lead to a malpractice suit (e.g., … foreign body left in during surgery), and aspects that are unlikely to do so (e.g., … central-line associated bloodstream infection).”
The authors concluded that “reduced risk of med mal litigation, due to state adoption of damage caps, leads to higher rates of preventable adverse patient safety events in hospitals.” (Black’s research on tort reform and patient safety is available online at http://tinyurl.com/pqplykr and http://tinyurl.com/nnqvnwj.)
Black says the research reveals human nature at work. PSIs, which are data points used to gauge the incidence of threats to patient safety, start increasing soon after a state enacts tort reform and continue to rise steadily, he says. “The idea is a simple one. If you make people more liable, they’re more careful,” he says. “If you make them less liable, they’re less careful. It’s not that they’re doing things on purpose, but rather there is just less incentive to be careful.”
Physicians also might be more willing to perform risky or challenging procedures, which could increase the PSI rates, Black says.
Organizations also might be less willing to invest in patient safety when tort reform is enacted, Black notes, and that attitude has been reinforced by the fact that earlier research focused on mortality rates as an indicator of patient safety. Mortality does not increase after tort reform, Black says, but injuries do.
“Hospitals make more mistakes, but they’re not bad enough to kill you,” he says. “The lesson is that if one source of incentives, like med/mal risks, goes down, then you’re going to have to work harder at patient safety from another angle.”
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Bernard S. Black, JD, Chabraja Professor, Northwestern University Law School and Kellogg School of Management, Chicago. Email: [email protected].
