​A study published in the May 2017 issue of The Joint Commission Journal on Quality and Patient Safety found no association between measures of malpractice risk and an organization's adherence to process care measures, although the threat of malpractice may increase the practice of defensive medicine. The authors examined data from short-term, acute-care general hospitals that publicly reported data to the Centers for Medicare and Medicaid Services' (CMS) Hospital Compare in 2011. The authors compared associations between state-specific malpractice environment measures (e.g., rate of paid claims, absence of tort reform laws) and measures of hospital quality (e.g., process of care, imaging use). The study found no consistent association between malpractice environment and hospital process-of-care measures; further, the authors found evidence suggesting that greater malpractice risk seems to incentivize the practice of defensive medicine, and that measures of malpractice pressure were negatively associated with patient satisfaction scores. According to the authors, "If strong evidence cannot be found supporting the association between malpractice threat and improved quality of care and patient outcomes, then national dialogues on malpractice reform might well consider whether the excess cost of 'doing business' in litigious environments could be reinvested in alternative, evidence-based strategies that are more effective in improving patient outcomes."

HRC Recommends: The lack of a consistent relationship between quality of care and malpractice litigation should not be surprising to risk managers familiar with claims handling. Malpractice suits historically have not been processes in which plaintiff attorneys consistently use quality of care measures to establish legal liability. Individual lawsuits are grounded on one or more theories of state tort law liability in a legal system that requires the plaintiff to establish "fault" on the part of individuals and entities and prove that the defendants' faulty acts or omissions caused the harm for which the plaintiff seeks monetary recovery. Plaintiff attorneys typically use information obtained in discovery to construct a compelling "story" that resonates with a jury's sense of right and wrong, often focusing on the alleged wrongful conduct of the defendants with the "deepest pockets." A plaintiff's theory of liability may be geared to the jurisdiction's approach to joint and several liability and/or limitations on damages. Plaintiffs litigating in a jurisdiction that provides a cap on damages to nonprofit hospitals, for example, may seek to minimize the nonprofit institution's "systemic" quality of care "fault" and instead focus the jury's attention on the alleged wrongful conduct of individual physicians or nurses, measured against a standard of care established by the plaintiff's expert witnesses. Regardless of the study's finding, analysis of individual closed malpractice claims can nevertheless provide risk managers with uniquely useful information and insight concerning occurrence of specific adverse events and unexpected poor patient outcomes.