Abstract
MM first came to the attention of policy makers primarily in the USA where, from the 1970s, healthcare providers denounced problems in getting insurance for medical liability, pointing out to a crisis in the MM insurance market (Sage WM (2003) Understanding the first malpractice crisis of the 21th century. In: Gosfield AG, (ed) Health law handbook. West Group, St. Paul, pp 549–608). The crisis was allegedly grounded in an explosion of requests of compensations based on suffering iatrogenic injuries. Since then, MM problems have been identified with scarce availability of insurance coverage and/or its affordability, the withdrawal from the MM insurance of commercial insurers, the growth of MM public insurance or self-insurance solutions, the choice of no-fault rather than negligence liability, the adoption of enterprise liability for hospitals, the concerns for defensive medicine, and the implementation of tort reforms so to decrease MM pressure (i.e., frequency of claims and the levels of their compensation) on healthcare practitioners. While the initial contributions to the topic are mainly based on the US healthcare and legal system experience, a growing attention to these problems has raised in the last decades also among European countries (Hospitals of the European Union (HOPE) (2004) Insurance and malpractice, final report. Brussels, www.hope.be; OECD (2006) Medical malpractice, insurance and coverage options, policy issues in insurance n.11; EC (European Commission, D.G. Sanco) (2006) Special eurobarometer medical errors).
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Notes
- 1.
It might be worthwhile to mention the “risk management” approach on this point. Indeed a central issue is “whether negligent injuries are caused largely by occasional inadvertent lapses of many, normally competent providers or by a minority of incompetent, physicians and low quality hospitals” (Danzon 2000)
- 2.
However, the empirical results are ambiguous, and they depend (1) on the caps’ target, as punitive damages, rather than economic or noneconomic damages, and (2) on the period of caps’ introduction, the reforms implemented in the 1970s, in the 1980s, or in the 1990s. For a review see Kachalia and Mello (2011). Many European countries adopt schedules of noneconomic damages rather than caps, as in the case addressed by Bertoli and Grembi (2013)
References
Amaral-Garcia S, Grembi V (2014) Curb your premium: the impact of monitoring malpractice claims. Health Policy 144(2):139–146
Andrews L (2005) Studying medical error in situ: implications for malpractice law and policy. De Paul Law Rev 54:357–392
Arlen J (2013) Economic analysis of medical malpractice liability and its reform. New York University public law and legal theory working papers. Paper 398
Barach P, Small SD (2000) Reporting and preventing medical mishaps: lessons from non-medical near miss reporting systems. Br Med J 320:759–763
Bertoli P, Grembi V (2013) Courts, scheduled damages, and medical malpractice insurance. Baffi center working paper. Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2367218
Ministero de Sanidad Y Consumo (2006) National study on hospitalisation-related adverse events. ENEAS 2005. Report. Madrid
Danzon P (2000) Liability for medical malpractice, Chap 26. In: Newhouse J, Culyer A (eds) Handbook of health economics. Elsevier, New York, pp 1339–1404
Davis P, Lay_Yee R, Briant R, Ali W, Scott A, Schug S (2002) Adverse events in New Zealand public hospitals I: occurrence and impact. N Z Med J 115(1167):1–9
Department of Health (UK) (2014) Legislation to encourage medical innovation: a consultation. Available at https://www.gov.uk/government/organisations/department-of-health. Accessed Feb 2014
European Commission, D.G. Sanco (EC) (2006) Special eurobarometer medical errors
Fenn P, Gray A, Rickman N (2004) The economics of clinical negligence reform in England. Econ J 114:F272–F292
Fenn P, Gray A, Rickman N (2007) Liability, insurance, and medical practice. J Health Econ 26:1057–1070
GAO-04-128T (2003) Medical malpractice insurance. Multiple factors have contributed to premium rate increases, testimony before the subcommittee on wellness and human rights, committee on government reform, house of representatives. U.S. Government Printing Office, Washington, DC
Grady MF (1992) Better medicine causes more lawsuits, and new administrative courts will not solve the problem. Northwest Univ Law Rev 86:1068–1093
Hospitals of the European Union (HOPE) (2004) Insurance and malpractice, final report. Brussels, www.hope.be
Kachalia A, Mello MM (2011) New directions in medical liability reform. N Engl J Med 364:1564–1572
Kessler DP (2011) Evaluating the medical malpractice systems and options for reform. J Econ Perspect 25(2):93–110
Leape LL, Berwick DM (2005) Five years after To Err is Human. What have we learned? JAMA 293:2384–2390
Mello MM, Studdert DM, Brennan TA (2003) The new medical malpractice crisis. N Engl J Med 348:2281–2284
Nys H (2009) The factual situation of medical liability in the member states of the council of Europe, reports from the rapporteurs, conference ‘The ever-growing challenge of medical liability: national and European responses’, Strasbourg, 2–3 June 2008, pp 17–28
OECD (2006) Medical malpractice, insurance and coverage options, policy issues in insurance, no. 11
Reason J (2000) Human error: models and management. Br Med J 320:768–770
Rowe M (2004) Doctor’s responses to medical errors. Crit Rev Oncol Hematol 52:147–163
Sage WM (2003) Understanding the first malpractice crisis of the 21st century. In: Gosfield AG (ed) Health law handbook. West Group, St. Paul, pp 549–608
Shavell S (1987) Economic analysis of accident law. Harvard University Press, Cambridge
Towse A, Danzon PM (1999) Medical negligence and the NHS: an economic analysis. Health Econ 8:93–101
Vincent C, Neale G, Woloshynowych M (2001) Adverse events in British hospitals. Preliminary retrospective record review. Br Med J 322:517–519
Weiler PC, Hiatt HH, Newhouse JP, Johnson WG, Brennan TA, Leape LL (1993) A measure of malpractice: medical injury, malpractice litigation and patient compensation. Harvard University Press, Cambridge
Weingart SN, McL Wilson R, Gibberd RW, Harrison B (2000) Epidemiology of medical error. Br Med J 320:774–777
Zegers MD, Bruijne MC, Wagner C, Hoonhout LHF, Waaijman R, Smits M, Hout FAG, Zwaan L, Christiaans-Dingelhoff I, Timmermans DRM, Groenewegen PP, Van Der Wal G (2009) Adverse events and potentially preventable deaths in Dutch hospitals: results of a retrospective patient record review study. Qual Saf Health Care 18:297–302
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Grembi, V. (2019). Medical Malpractice. In: Marciano, A., Ramello, G.B. (eds) Encyclopedia of Law and Economics. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-7753-2_68
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