Medical Malpractice Reform
Not just controlling malpractice costs
Scholar: Michelle M Mello, JD, PhD, MPhil
More Americans die every year from preventable medical errors than die from breast cancer or auto accidents. Patients harmed by avoidable errors are poorly served by the medical malpractice system, which fails to compensate them fairly or prevent future errors.
Greenwall Faculty Scholar Alumna Michelle Mello, J.D., Ph.D., Professor of Law at Stanford University and Professor of Health Research and Policy at the School of Medicine, and her colleagues are testing an innovative alternative to malpractice lawsuits: Hospitals and malpractice insurers can disclose medical errors, offer fair compensation up front for medical injuries when appropriate, offer an explanation and sympathetic apology in cases where injuries don’t appear to be due to an error, and use data about injuries to improve the quality of health care. Such voluntary, private programs bypass the legislative gridlock over malpractice reform.
Failure of the current malpractice system and conventional reforms.
Malpractice litigation has many shortcomings as a system of providing fair compensation for injuries caused by avoidable medical errors. From patients’ perspective, the main problem is that it doesn’t provide good access to compensation. Only about 2% of patients injured by negligent care file malpractice claims, and about a quarter of those with meritorious claims do not receive any money. Among those who do, compensation varies greatly across seemingly similar cases of injury. And the wait for compensation can be long: the average time between injury and resolution of claims is five years.
From the perspective of health care providers and their insurers, the main problem is that many patients who haven’t actually been injured due to negligence file lawsuits, and about a quarter of them receive compensation through these suits. Providers often feel blindsided by lawsuits; it can be hard to predict which adverse care outcomes will result in a claim. They also feel very vulnerable to the risk of “jackpot” awards at trial—outcomes that happen rarely, but can be financially devastating.
Traditional tort reforms, such as caps on awards for pain and suffering, address few of these problems.
Can we redesign the medical liability system to improve the quality of medical care?
Professor Mello and her colleagues are studying potential ways to redesign the medical malpractice system so that it provides improved access to fair compensation and does a better job of providing incentives for safer care.
Administrative compensation of medical injury (ACS). In an ACS, a patient who suffers an avoidable medical injury does not bring a lawsuit to claim compensation. Instead, she files a claim through an administrative process. It is evaluated by a neutral adjudicator, not a jury, based on reports by impartial medical experts. A patient can receive money even if the injury was not due to negligence, as long as it was avoidable in a well-designed system of care. ACS systems, which are used by several foreign countries, increase access to compensation for injured patients, lower the overhead costs associated with compensating injuries, and provide information to support quality-improvement programs. With colleagues at Harvard, Professor Mello has conducted a series of studies evaluating the feasibility of the idea for the U.S.
Disclosure-and-offer programs. Professor Mello is also working on implementing and evaluating “disclosure-and-offer” programs, in which healthcare institutions and their insurers proactively disclose medical errors to patients and families, rapidly investigate why they occurred, apologize, offer compensation when appropriate without requiring the patient to sue, and take steps to prevent similar errors from recurring. This approach was pioneered by the University of Michigan Health System with considerable success, but whether it can work in other settings has been unclear.
In Washington State, Professor Mello is collaborating with Greenwall Faculty Scholar Alumnus Dr. Thomas Gallagher to implement disclosure-and-offer programs in several hospitals and physician clinics and evaluate its effects. Professors Mello and Gallagher are also evaluating disclosure-and-offer programs at six hospital systems and insurance companies that were early adopters of the approach.
In New York, Professor Mello is working with five hospitals, the state Department of Health, the Office of Court Administration, and judges to implement a disclosure-and-offer program. Additionally, they have created a judge-directed negotiation program for cases that do progress to litigation. In that program, four specially trained judges help the litigants come to the settlement table early and often to try to resolve the dispute.
The Greenwall Foundation catalyzed an interdisciplinary collaboration linking responses to medical errors with liability reform.
The collaboration between Professors Mello and Gallagher sprung from their interactions at Greenwall Faculty Scholars meetings. Professor Mello’s interest in improving malpractice dispute resolution was a natural match for Professor Gallagher’s interest in improving communication about medical errors. His research established that patients want physicians to disclose medical errors, apologize, and explain how similar mistakes will be prevented in the future. Read more about Professor Gallagher here. Professor Mello and Professor Gallagher’s joint work has shifted policymakers’ focus away from legislative gridlock over tort reforms to how public policy can support private, voluntary initiatives by hospitals, liability insurance companies, and other stakeholders. Their ongoing collaboration is supported by grants from the Robert Wood Johnson Foundation and the federal Agency for Healthcare Research and Quality.
Professor Mello has been a thought leader in public health law and policy.
In addition to her research on malpractice, Professor Mello has also published studies and commentaries on urgent public health law issues, including obesity prevention, vaccination requirements, tobacco control, and oversight of biomedical research.(1) The Greenwall Foundation fostered collaborations between Professor Mello and other Faculty Scholars, building on their different intellectual backgrounds and interests. To see more on Professor Mello, please follow this link.
 Colgrove J, Abiola S, Mello MM. School mandates for HPV vaccination—public health law making amid political and scientific controversy. N Engl J Med 2010;363(8):785-791.
Mello MM, Abiola S, Colgrove J. Pharmaceutical companies’ role in state vaccination policy making: the case of HPV vaccination. Am J Pub Health 2012;102(5):893-8.
Mello MM, Wolf LE. The Havasupai Indian tribe case—lessons for research involving stored biologic samples. N Engl J Med 2010;363(3):204-207.
Mastroianni A, Mello MM, Sommer S, Hardy M, Gallagher TH. The flaws in state ‘apology’ and ‘disclosure’ laws dilute their intended impact on malpractice suits. Health Aff 2010;29(9):1611-1619.