“All men make mistakes, but a good man yields when he knows his course is wrong, and repairs the evil. The only crime is pride.”
— Sophocles, Antigone
In the most recent peer reviewed investigation into the rate of death caused by preventable medical errors, The Journal of Patient Safety revealed a staggering number of 440,000 deaths per year. The seminal study into the death rate due to medical neglect, published thirty years ago in 1984 by the Institute of Medicine, revealed a medical error death total of 98,000 per year. The over fourfold increase in death due to preventable medical errors is eye opening to say the least. What’s more, the Journal of Patient Safety further estimates that for every preventable death, medical errors produce 10 to 20 incidents of serious harm. This makes injury or death due to medical negligence a national epidemic.
Clearly, we can do better. Health care providers, hospitals, and the systems that bind them must begin devoting themselves to two important first steps: (a) acknowledging the problem and (b) doing everything possible to fix it.Unfortunately, over the past thirty years, organized medicine has put most of its political energy behind “tort reform” which aims to immunize health care providers from legal accountability for their negligence. At best for the health care industry, tort reform diminishes the financial incentive to develop the safest patient care. At worst, tort reform serves as a drain on the financial and human resources of the health care industry, misdirecting dollars and time that could and should be spent on finding true solutions to the lack of safety and diminished quality in our health care system.
The answer is not capping damages in medical malpractice cases, nor is it limiting or eliminating legal responsibility for negligent death and injury. To the contrary, our civil justice system has proven itself uniquely capable of curtailing unsafe and socially unacceptable behavior. Understandably, those who would otherwise be held accountable for their neglect prefer to eliminate that accountability. But this approach is myopic as it only produces greater safety problems for all of us, distracts energy and resources from the priority of safer medical practices, and injects deep cynicism into our system of justice.
The days of “tort reform” should be put to rest. It is high time we put our energy behind safer medical systems and better medical practice. The panacea is not eliminating the power of the civil justice system. Indeed, the answer includes, among other things, empowering our civil justice system to create meaningful accountability for medical negligence. Let’s put an end to damage caps, unconstitutional procedural barriers, and other anti-judge and anti-jury initiatives. Our democracy is at its best when we let our juries and our judiciary do their jobs. The independence of the judicial branch, and its power to hold wrongdoers accountable, is just what the doctor ordered when it comes to incentivizing safety in our society and in our health care system.