Mandatory Disclosure of Errors

Bradley Thomas Giordano offers insight on how mandatory disclosure of physician errors could affect the current medical malpractice system.

Q: Is the medical malpractice landscape ideal for practicing physicians and injured parties?

Bradley Thomas Giordano:  No. In my opinion, the current medical malpractice landscape is far from ideal, at least from a physician’s perspective.  Medical malpractice claims are unpredictable both in terms of their incidence and their success.  Such unpredictability undercuts the tort system goals of compensating parties who were injured as a result of negligence and deterring negligent behavior, and by extension it also impacts health care quality as an outcome of effective deterrence.  Doctors, unable to predict their malpractice liability, face increasing malpractice insurance premiums and pressure to engage in defensive medicine.

Q: Would changing the current status quo be better or worse for doctors?

Bradley Thomas Giordano:  There is some evidence that the situation could get worse for physicians since the majority of potential malpractice claims are not pursued in the current environment. Therefore, there is a risk that changes to the current system could result in increased malpractice liability and litigation costs. On the other hand, there are strong arguments that increased reporting of medical errors will actually reduce malpractice liability.  For example, compliance with this type of proposal may result in significant improvements to the current standards of care which would likely reduce errors and corresponding causes of action.

Q: Can you help me understand why the U.S. medical malpractice system is described as “reactive?”

Bradley Thomas Giordano:  The current system is one that attempts to improve quality through individualized fault assessments.  This system has been described as a reactive approach because it attempts to improve quality by identifying errors only after they have resulted in a bad outcome, rarely investigating underlying causes in order to prevent the same mistakes in the future.  Critics of this model have advocated moving away from reactive fault assessments and towards investigating the root causes of errors with an eye on designing safety protocols that will reduce the likelihood of error on a system-wide basis.

Q: What benefits are there to the mandated reporting of medical errors?

Bradley Thomas Giordano:  The hope is that if good information concerning the incidence and circumstances leading to medical error is aggregated, careful analysis may then lead to the development of new, safer healthcare delivery standards that will reduce medical error and corresponding malpractice liability going forward.