[MUSIC] Welcome back. Today we continue our discussion of health care quality control and the way that the law attempts to achieve that with respect to the basic medical malpractice standard. So to review, we've already addressed the upfront quality control goals that licensure laws seek to achieve. But as we said in that lecture, licensure can only do so much because it only intervenes before a professional's career starts, for the most part. If we want to monitor the actual care that's given over time, we need a standard that looks to the appropriateness of medical care given in a given point in time. And that's what the medical malpractice standard does. It looks kind of after the fact at the way care was given in a circumstance where a patient suffered injury. And looks to see whether the health care provider met given standard in that state. Now, as I'll say it's a inefficient process, its operationalize by courts and juries in ways that can be highly inaccurate. And so I want to ask you both to think about the desirability of this area of law in general and also about improvements we could make going forward. And in the next lecture I'll address explicitly some reforms that certain states are making with respect to medical malpractice. But first some basics. Why do we have medical malpractice law? Well, it gets to this impulse that we ought to have legal interventions to ensure that the medical care that patients receive meets a certain standard of quality. And so medical malpractice in every state, and it is still a state law regime. There is no Federal medical malpractice law. In every state, the law kind of sets a basic standard. And it punishes certain breaches from that standard if a patient can show that the breach caused harm and caused damage. So it's a quality assurance system, it has kind of two major goals and for one, we look at the doctor, for the other, we look at the patient. The kind of physician focused goal is all about creating incentives or disincentives on physicians in order to avoid the negligent, or sloppy, or uninformed practice of medicine. So we call this a deterrence effect, the notion that although a judge and a jury is not sitting there in the operating room with the physician or the nurse, we would hope that these professionals, because they know that if a bad result occurs and they didn't follow proper standards, they could face liability in the future. We hope that that kind of circles back to affect their conduct and to make them more careful, and more sophisticated in the moment. That kind of feedback loop, with the potential for after-the-fact consequences, is called a deterrence effect. And in a sense, a major goal of medical malpractice law is the attempt to deter substandard medicine, by threatening consequences after the fact. Another goal, a very different goal that often doesn't work in nice coordination with the deterrent goal, is the goal of compensation. Here this is a very patient-focused goal. It's the idea that everybody who goes and enters into a medical treatment relationship with a physician or with the hospital ought to expect a decent standard of care. And ought to expect not to be injured by their provider. And when such injury occurs because of substandard care, we say that there ought to be some compensation flowing from the provider to the patient to help compensate them in some way for this medical harm that's occurred. Now, the law is imprecise in how it compensates because it often attempt to compensate grievous, bodily harm, even death or egregious psychological harm, and pain, and suffering using the very crude device of money and dollars. And so there's no way to bring somebody back, who's been disabled, or suffer death from the result of bad medical care. So the law is very kind of clunky in the way it attempts to compensate through money damages. I want you to realize it may be possible for one of these goals to be served even when the other's not. So as we'll see, medical malpractice law is really and precise and how it compensates patients, lots of patients who are injured get nothing. Lots of patients who receive kind of medium level injuries get what we might consider as too much money. So I think there's kind of an overcompensation and an under compensation effect going on. It's possible that the system could be inaccurate in that sense of these of the individual patients and. But still be pretty good in terms of creating a level of caution or level of deterrence to health care providers. Now, you're welcome to disagree with that second statement because it's also possible and many do allege that the threat of tort liability actually creates too much deterrence. It makes you've heard of the phrase defensive medicine, it makes doctors too cautious. So those are the policy questions to think about as we go through these legal rules in this session and the next session. One thing that's important as a baseline and health economists have studied this as well as legal scholars, is that one thing that's clear is that because medical malpractice is operationalized through a case by case court litigation system. Is that there's lots of medical errors that are caused by malpractice that never end up in the court system, or never litigated, or never compensated, or deterred. And that's because medical malpractice litigation is expensive on both sides. And for a lawyer to take a patient's case, the lawyer and the patient kind of have to think that there's going to be a pretty good recovery at the end of the day, which means there's got to be a pretty egregious injury. So, indeed, some studies have suggested that the value of a case has to be almost half a million dollars. And it's kind of expected jury verdict to even be worth filing a case. That means that there's a lot of cases of pretty egregious medical care that don't luckily cause egregious harm that are never operationalize through the medical malpractice system. So if you really want to get a medical error and medical quality, we're going to need other devices. Because this courtroom based litigation model only gets at the most egregious cases, okay? Courts are brought only when severe harm occurs. That means that when you look at medical malpractice litigation, you're only seeing the tip of the iceberg in terms of things that go wrong in the medical care system. A couple other problems with medical malpractice law is that because it seems so arbitrary, because some vertex seem too large, other vertex maybe don't get brought at all, other cases don't get brought at all is that it may not be sending the right kind of signal to doctors and other medical professionals about the duty of care, about their own practice. It's such a blunt instrument that it might not be creating the deterrent effect or the gains to quality of care that we want. We might, again, need to look to other systems. Maybe hospital based systems that give in the moment feedback to physicians to give that kind of more nuanced quality of care thing. The other thing is the way that the law can operate corrosively, with respect to medical care improvements, is because we have this after-the-fact litigation system, that relies on evidence presented, and witnesses, and documents. In many states, the potential of a lawsuit after a bad medical event actually deters what we most want to happen in a group based medical care setting. We want the healthcare providers to talk with their institution, to talk amongst each other about what went wrong. We want them to admit what they did wrong. We want them to address it and improve upon it. Now, traditionally in many states, those kinds of discussions might even be used by the plaintiff to make out a case of medical malpractice. So that's deterred doctors from talking about error or admitting error internally. Happily, some states have reformed their rules of evidence to allow that kind of discussion and make those discussions inadmissible in a subsequent medical malpractice suit. So that's certainly a reform I would support on quality improvement grounds. Let me give you the basic legal principles for medical malpractice. There's really four elements to a medical malpractice case in every state. And, again, this is still a matter of state law. There's no national medical malpractice standard. Number one, there has to be a duty of care to the patient. That exists largely when a treatment relationship exists. Then there has to be a breach of that duty, the health care providers care has to be substandard. And I'll come back to what substandard means in the medical malpractice context in a moment. Number three, the substandard care has to have caused the harm that the patient complains of. Now this is often hotly contested because again, we're dealing with sick individuals who present with deep healthcare problems maybe the bad result would have happened irrespective of the physician conduct. Finally, they have to prove damages and money damages. So this goes to what I was saying before, most medical malpractice cases are the severe cases. A lot of more minor cases never get brought. Let me come back to the hardest part of the medical malpractice case, which is the breach of the standard of care. What do we mean by standard of care, and how do states and individual courts operationalize it? This is an area where health care has a special legal rule. And it's fairly physician friendly, because unlike other areas of tort law which look to economic efficiency, or kind of best practices. Historically and today, most states still apply what's called a customary standard to the ordinary best practices in medical care. So physicians need to exercise the ordinary skill and diligence that other physicians practicing in the jurisdiction do. It's somewhat circular. How do we know if the doctor practiced good medical care? We look at what other doctors in the jurisdiction do. So you can see that this is somewhat of a profession friendly standard and a standard that is certainly somewhat agnostic as to medical innovation. It does not ordinarily or automatically incorporate best practices or advances in medical technology. And that's starting to say change in some states in ways that I think are good for medical quality, but historically was really kind of a very static standard. We look at whether doctors are practicing good medicine by what other doctors do. Now, the other implication of this kind of customary medical practice based standard is individual lawyers and their patients can't prove that, we don't know what a good medical practice is. Thus, both sides in a medical malpractice litigation need to have physicians testifying as medical experts about what good physicians do in the jurisdiction. That raises the cost of litigation and it creates this battle of experts, which is often described as unseemly. A couple other facets to this rule. For a long time, for most of US history states applied something called the locality rule. And this was even more problematic. This meant that despite an increasingly nationalized profession and national medical journals, and national medical schools, the standard of care in a given jurisdiction was determined by state courts by what other doctors did in that state or even in that city. So it very much was hostile to a nationally uniform standard of care. And it meant that experts had to come from that locality or that jurisdiction. This is called the locality rule. Good news, in my view is that most states are drifting away from the locality rule, try to kind of national practice context setting. So, the standard of care for a physician in a major hospital would be judged by the way physicians practice in other major hospitals, including outside the jurisdiction. The standard of care for somebody in a poorly funded rural health care clinic might be a somewhat lower standard of care, analogous to the way physicians practice in clinics that are similarly staffed with the same kind of technology and resources. So there still are variations in the standard of care, but they're more context-specific, rather than jurisdiction-specific. A couple exceptions there, if a physician advertises herself or himself as board certified, many courts are starting to apply a national higher standard of care for what an ordinary board certified physician would do in that circumstance. So these are some of the nuances of the doctrine. The other interestingly problematic fact about medical malpractice standard of care is it's not the highest standard of care. So, a physician who on most of his or her best days is better than most of the physician in a given practice area, and might have a poor day by his or her own unusually high standards, might still not breach the standard of care. Because again, physicians are not required to meet their own high standards in practicing medicine. They need to meet the standards of the ordinary physician in a similar kind of practice. And so again, we're not asking for best practices, we're asking for kind of ordinary customary practices. And that leads some reformers to say we ought to have a higher standard. One other other thing that's important. When there is good faith disagreement in how medicine or diagnosis ought to be practiced in a given context. Physicians who practice in different ways, can avoid medical malpractice. Breach of duty lawsuits merely by showing that a respectable minority or a number of physicians practicing medicine the way I did even if a majority of physicians would have responded to this condition in a different way. So, this is another way that the legal rule is somewhat physician friendly. It does not force all physicians toward a single best practices custom. It's in every state willing to accommodate different modes and methods of practicing medicine, so long as each mode and method can show that other physicians, other respectful physicians practice in that way. So these are kind of the basic building blocks of a medical malpractice lawsuit. To review, you need a duty of care. You need a breach of that duty, which is assessed in a customary basis by what other ordinary physicians do. You need to show that that breach caused harm to the patient. And you need to show that the patient suffered damages. And so, this is expensive to prove all of these, if the patient doesn't prove all four of those, he or she loses the lawsuit. So, to sum up, medical malpractice is a long standing system intended to ensure medical quality by deterring bad practice on the part of providers and by compensating patients who are injured by substandard medical care. I do think it serves an important function and ought to continue to do so in the future. However, it's very imprecise, there's lots of people who think it could be improved. And our topic in the next session will explore some of these proposals for reforming the medical malpractice system to better serve the goals of patient safety and quality. Thank you.
