Malpractice reduction and standardisation of care: two sides of the same coin

The tort system in the US functions poorly in adjudicating blame and providing compensation for adverse medical outcomes, and the overhead costs of this system are exorbitant (Studdert et al. N Eng J Med 2006;354:2024– 33). The question is whether the system can be improved within the constraints of fairness and justice to both patients and providers, and the financial realities of a broken US healthcare system. Rational discussion of these issues is made more difficult by both the overlying financial interests of the powerful trial lawyers’ lobby and the lack of an effective system of peer review, physician oversight, and discipline in the US (Gandhi et al. Am J Obstet Gynecol 2017;216:244–9). The nofault system of compensation discussed by Prof. Steer has proven successful in countries such as Denmark, Sweden, and New Zealand. The financial viability of such a system in the US remains controversial in the absence of a government-controlled, single-payer system, however, as most injured patients currently never sue and are not compensated (Studdert et al. JAMA 2001; 280:217–23). Maternal mortality in the US is several times higher than in most other high-resource nations. As mortality is generally regarded as simply the tip of a much larger iceberg of serious morbidity, the prospects of providing fair compensation to all injured patients in the USA becomes even more problematic. Thus although the pursuit of meaningful tort reform remains a worthy cause, additional measures will be necessary if a significant reduction in malpractice claims and costs is to be achieved. Part of the answer lies in data examining the relationship of malpractice loss to actual substandard care. The available data suggest that claims not involving errors account for less than one-quarter of the monetary costs of the system: in the majority of obstetrical cases for which a malpractice payment is made, a review by an independent panel will determine that the standard of care was violated and caused the injury (Studdert et al. N Eng J Med 2006;354:2024–33). The key to reduced litigation thus lies in reforming practice to reduce injury. Fewer adverse outcomes equal fewer lawsuits. The standardisation of care is essential in this process (Clark et al. AJOG 2008;199:105e1–e7). In addition, the articulation by professional organisations of completely unambiguous care protocols for those processes associated with the majority of adverse outcomes (and hence litigation) may assist in the creation of a ‘safe harbour’ of practice for those who choose to adopt such an approach. This is, of course, a double-edged sword for those who choose autonomy over evidenceand consensus-based practice. In addition, consumers must accept the fact that technology for the detection and prevention of birth asphyxia, the leading cause of obstetric malpractice loss, is highly imperfect. Demand for perfect outcomes comes at a price of higher caesarean rates. In a perfect world, complex medical issues would be adjudicated by panels of real experts with a deep understanding of the subject matter. Unfortunately, we do not live in such a world. Simply lamenting the current malpractice situation and continuing with traditional approaches to tort reform is likely to be as effective in the future as it has been in the past. The clear articulation and adherence to unambiguous standards of care for high-risk situations appears to be the best way forward.