In a recent article published by JAMA ("The Journal of the American Medical Association"), the authors revealed what we all probably knew anyway: medical errors, including surgical errors, actually make money for hospitals. After all, when the errors cause complications the patients require more care, more days in the hospital, and the hospital bill is larger.

The authors, from various institutions including Harvard Medical School and Harvard School of Public Health, demonstrated that private insurers and Medicare routinely pay for the added care, irrespective of whether the care was occasioned by medical malpractice.

The data, though intriguing, is hardly surprising. The difficult issue, however, is whether we can trust the marketplace to motivate doctors and hospitals to reduce medical errors when they have no financial incentive to do so. The article points out that no one believes hospitals are intentionally causing errors to make money. But the converse concern remains: no one really believes hospitals have great incentives to spend money on error reduction when doing so reduces revenues.

Traditionally, our civil justice system provided a financial incentive to health care providers to reduce errors. But in recent years, especially during the Bush administration, our legislators adopted medical malpractice tort reform, capping damages and otherwise insulating health care providers from the financial penalties inherent in lawsuits and civil remedies.

In this environment, we need to mature our way of thinking and legislation. If we care about hospital safety and quality of care, and all of us should, it is time to recognize that tort reform is a failed policy. Enhancing the profits of American hospitals and liability insurers at the expense of injured patients should not be our highest priority. A vigorous and healthy civil justice system can do us all a lot of good. Next time a politician tries to scare you into reforming our tort system with the specters of "greedy trial lawyers" and "runaway juries" think about what tort reform policies mean for safety and security in our health care system. Odds are, and contrary to urban myth, the real bogeymen are lurking in our hospitals, not our courtrooms.