Chih-Ming Liang, ‘Rethinking the Tort Liability System and Patient Safety: From the Conventional Wisdom to Learning from Litigation’

This paper reviews the changing landscape of the debate over the relationship between tort law and patient safety. The conventional wisdom in the legal community is that tort litigation harms patient safety by discouraging providers from embracing openness and transparency; but this no longer correlates to reality. Instead, in recent years there has been a growing trend among providers to use claim and litigation data as opportunities to improve the performance of the delivery system, a trend referred to by this paper as the phenomenon of Learning from Litigation. By exploring this emerging phenomenon, in particular how healthcare providers specifically turn malpractice litigation into safety lessons, this paper proposes that, in the age of Patient Safety Movement and Learning from Litigation, the best approach to tort reform is to encourage early resolution via communication-and-resolution programs (i.e., the claims management model pioneered most notably by the University of Michigan Health System that is predicated on embracing the value of openness and transparency). This approach not only has strong potential to both reduce the number of claims and payout for providers and expand the pool of patients eligible for compensation, but, more importantly, may yield significant patient safety benefits by shaping a more transparent and safer medical culture within healthcare organizations. The proposed approach, in turn, can be supported by policies that: 1) reward providers’ commitment to patient safety and reduce the cost of litigation discovery; 2) help overcome the cultural, legal, and economical barriers to early resolution; and 3) incorporate communication-and-resolution program ideas into the pre-trial settlement negotiation processes.

Chih-Ming Liang. 2014. “Rethinking the Tort Liability System and Patient Safety: From the Conventional Wisdom to Learning from Litigation.”

First posted 2014-09-15 11:56:47

Leave a Reply