“Less than 2 percent of victims of malpractice ever file a lawsuit; yet, among the suits that are filed, about one-third do not involve malpractice.”

Some observers claim there is an “epidemic of malpractice,” based on estimates of medical errors and the number of errors classified as negligence.⁴ Others claim that it is litigation, not malpractice, that is far too common.⁵ Which view is right?  In order to determine whether there is too much or too little malpractice litigation, it is necessary to determine how efficient the tort liability system is in compensating patients who are injured by medical errors, and how efficient the system is in denying malpractice compensation for poor treatment outcomes that are not due to provider negligence.

Adverse Events. There are risks inherent in any type of medical treatment and in any hospital stay.  The number of patients harmed in the course of treatment is a widespread concern. For example, an estimated two million patients suffer hospital-acquired infections each year.⁶ However, since there is no uniform system for reporting incidents in which a patient is harmed, estimates of the number of patient injuries due to medical error depend on the definitions used by researchers.

The influential Harvard Medical Practice Study defined a medical error as “an injury that was caused by medical management (rather than the underlying disease) and that prolonged the hospitalization, produced a disability at the time of discharge or both.”⁷ The Harvard researchers found some of these injuries were due to negligence, which they defined as medical care that “failed to meet the standards expected of a typical medical practitioner.”  In other words, a patient was harmed by careless treatment.  The researchers estimated that 2.9 percent of hospital patients in Colorado and Utah, and 3.7 percent of hospital patients in the state of New York experienced adverse events in 1984.

An Institute of Medicine (IOM) report, To Err Is Human, applied these Harvard estimates to patients nationwide. The IOM concluded:⁸

• Nationwide, 4 million to 5 million hospitalized patients are harmed by medical errors each year.
• Some 44,000 to 98,000 Americans die each year in hospitals as a result of medical errors.

Some experts think flaws in the Harvard study led the IOM to overestimate the number of injuries and deaths from medical errors.⁹ Others think the IOM report understates the likely number of deaths and injuries.¹⁰

Medical Errors and Negligence.  Experts disagree on which medical errors should be classified as negligence.  Using its definition of negligence (substandard care), the Harvard Medical Practice Study concluded that more than one-fourth of adverse events were due to negligence.¹¹

Some dispute this estimate.  The Harvard study involved the review of about 30,000 randomly selected hospital records by two physicians.  The physicians often disagreed on whether or not to attribute an adverse event to negligence, but classified arguable incidents as negligence.¹² And medical errors were put in the same category as negligent acts by physicians, even when doctors were not directly involved.  For example, a “slip and fall” in a hospital corridor, over which a physician may have little control, was lumped in the same category as a surgical error, over which a physician has direct control.¹³

Researchers Robert Wachter and Kaveh Shojania say medical errors can be divided into two categories:¹⁴

1. Active errors by doctors, nurses or other workers, such as giving the wrong amount of medication during an emergency procedure.
2. Latent errors, such as poor equipment maintenance or design, or poorly organized health care delivery, such as failing to adequately follow up on a patient’s diabetes or high blood pressure.

While active errors are usually detected quickly, systemic, latent errors are more difficult to detect because they are beyond the control of individual caregivers.

“Hospitals have been slow to adopt error-reducing electronic medical records (EMRs).”

Hospitals have been able to reduce the frequency of some active errors.  For example, take deaths resulting from anesthesia during surgery.  In the early 1980s, after widespread reports of anesthesia-related deaths and skyrocketing malpractice premiums, safety procedures were improved and deaths dropped sharply.¹⁵ Similarly, news reports and litigation surrounding “wrong-site surgery” led the Joint Commission on Accreditation of Health Care Organizations to promulgate guidelines requiring surgeons to mark surgical sites beforehand.¹⁶

However, hospitals have been slow to make more comprehensive changes to hospital-wide systems that contribute to medical errors.  For example, handwritten prescriptions are a major source of medical errors; nearly 200,000 adverse drug events occur each year in hospitals due to manual order systems.¹⁷ Electronic medical records (EMRs) could greatly reduce medical errors, but less than one in five physicians and only one in four hospitals use them.¹⁸