Medical Malpractice: How Demand for Medical Innovation Increases Physicians' Exposure to Liability

In the debate over the crisis in the medical malpractice system, exorbitant jury awards and insurance industry pricing tactics are often singled out as guilty parties. But a new report points out the central role medical technology plays in the formulation of health policy and legal precedents on medical negligence. The report, “Medical Liability and the Culture of Technology” by Peter D. Jacobson, says that the history of medical malpractice liability closely parallels the development of medical technology, and that any attempt at reforming the system must take into account how technology influences malpractice liability—and vice versa.

“In a sense, technology is both a savior and a culprit,” Jacobson says. “Savior in extending length and improving quality of life; culprit in causing rapid increases in health care expenditures and, for physicians, considerably more exposure to liability.”

The report, one in a series produced by the Project on Medical Liability in Pennsylvania, funded by The Pew Charitable Trusts, explores the relationship between technology and medical liability, based on several assumptions: Technology is the principal driver of health policy, health care delivery and negligence law. But, most important, the report says, is the “culture of technology,” which is the major force in the development and use of medical technology.

American medicine thrives on the inexhaustible demand for high-tech medical interventions. Patients expect the latest treatments and devices, putting added pressure on physicians to embrace the newest technologies. But this culture of technology can lead to unrealistic patient expectations and a proclivity to sue when procedures fail. These trends have significant effects on malpractice liability.

“Along with improving health, technological advances create opportunities for error in diagnosis and treatment, and those errors may result in more visible and more severe outcomes,” Jacobson writes. “The precision of new technologies means that momentary lapses can have major adverse consequences.”

Jacobson, a professor at the University of Michigan School of Public Health, sees no easy legal or policy solution to the technological imperative. But the report lays out a series of recommendations that could provide greater stability in the medical liability system while continuing to encourage the broad and safe adoption of new technological advances:

• The Culture of Technology—A more forthright debate is needed between medical leaders and the public over the cultural aspects of medical technology to alter expectations about what new treatments and devices are capable of achieving.    
• Technology Assessment—Develop a more robust technology assessment process that helps ensure patient safety by limiting improper use of unproven innovations and allowing more training time for physicians and other health professionals.    
• Legal Standards of Care—Change the standard of care to incorporate cost-benefit analysis, allowing physicians to weigh available resources when deciding to adopt new technologies.    
• Liability Doctrine—Design a no-fault system in cases where causation is indeterminate (such as with neurologically impaired infants).    
• Expert Testimony—Expert witnesses are necessary in establishing liability for the use of technology, but they often disagree over what constitutes appropriate care. Jacobson describes three possible solutions: independent panels under judicial supervision to review and monitor expert testimony; use of court-appointed experts; or developing specialized courts. Of these, he argues that the best solution is an independent judiciary panel that would review and monitor expert testimony, and make use of court-appointed experts.

Jacobson concludes his report with a cautionary note: “Malpractice crises have generated an enormous amount of commentary, empirical report and reform proposals. By focusing political attention on simplistic fixes, such as caps on damages, policymakers have lost sight of the broader factors responsible for the recurrent malpractice crises. As long as society demands technological innovation, liability exposure is an inevitable consequence for physicians, hospitals and other health care providers.”

The Project on Medical Liability in Pennsylvania provides Pennsylvania policy makers with objective information about the medical liability system; broadens participation in the medical liability debate to include new constituencies and perspectives; and focuses attention on the relationship between medical liability and the overall health and prosperity of the Commonwealth. The Project is working with leading health policy experts from across the nation and will continue to publish both original research based on new data and expert analyses. The Project will generate information from a broad range of perspectives, without promoting the agenda of any of the stakeholders in the debate.