Problems of tort litigation as a means of patient and consumer protection in health care systems

Abstract

The U.S. health care system relies on tort litigation as a means of protecting patients and consumers from medical malpractice. The system of tort litigation has contributed to the U.S. having the highest health care spending per capita of any nation, but it has not resulted in superior quality of care. This work argues that tort litigation in health care is actually detrimental to patient safety and that the deterrent effect that it is meant to provide is circumvented by elements inherent in tort law. The possibility of settlement without admission of guilt creates a mechanism by which litigation is encouraged by economic incentives, but actual malpractice is not effectively discouraged. Furthermore, the system limits the operational knowledge gained through adverse events by removing these events and the actions that created them from the public discourse. Various proposed and enacted reforms to medical tort litigation are considered and it is found that dysfunctional interactions between professionals of different disciplines constitute a major obstacle to effective system reform. Finally, a modular view of the health care system is presented as a step toward identifying and reforming these interactions.