About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

80 Tex. L. Rev. 1595 (2001-2002)
Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform

handle is hein.journals/tlr80 and id is 1609 raw text is: Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform Michelle M. Mello* and Troyen A. Brennan I. Introduction After a decade and a half of quiet slumber, medical malpractice litigation is once again becoming an area of significant interest in health policy. This is a result of two larger themes in health care policy-the medical market and the patient safety movement-intersecting at a somewhat curious location. The perceived need to provide care that is both cost-effective and safe has health care managers and policymakers grappling with how to build a business case for quality.' This struggle, in turn, has generated interest in the possible role of medical malpractice litigation in deterring costly medical errors. The theme of the medical market is not a new one in health care. Many observers of health policy, led (somewhat surprisingly) by legal academics,2 have long argued that the only way to counter professional control over supply and demand in health care is to institute market incentives. These commentators believe that professional dominance has minimized the role of educated consumers and competitive market choices.3 This control has allowed physicians and hospitals to thrive while insulated from efficiency demands. In the vanguard of the marketplace movement has been managed care, with its integration of market themes into the doctor-patient relationship. Unlike traditional fee-for-service providers, capitated providers do not have a financial incentive to supply health services of marginal necessity or benefit. Managed care, unfortunately, has foundered due to consumer dissatisfaction and, in particular, the ongoing litigation brought by patients who have been denied care.4 Assistant Professor of Health Policy and Law, Harvard School of Public Health. Professor of Law and Public Health, Harvard School of Public Health; Professor of Medicine, Harvard Medical School; and Department of Medicine, Brigham and Women's Hospital, Boston. 1. See Molly Joel Coye, No To3tas in Health Care: Why Medical Care Has Not Evolved to Meet Patients' Needs, 20 HEALTH AFF. 44, 45 (2001); Robert S. Galvin, Te Business Case for Quality, 20 HEALTH AFF. 57,57-58 (2001). 2. See generally CLARK C. HAVIGHURST, HEALTH CARE CHOICES: PRIVATE CON'RACrs AS INSTRUMENTS OF HEALTH CARE REFORM (1985) (arguing for increased use of contracts that specify patients' legal rights). 3. See idU at 2 (contending that the current market fails to offer sufficient health care options). 4. See Alice A. Noble & Troyen A. Brennan, Managed Care in the Newv Era of Systems- Think: The Implications for Managed Care Organizational Liability and Patient Safety. 29 J.L

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most