Date of this Version
Arizona State Law Journal 45:4 (2013), pp. 1537–1561.
A new medical malpractice "crisis" periodically erupts across the United States, invariably producing calls for legislative solutions. Typically, the public is told that rising malpractice insurance premiums are driving doctors out of their practices or out of our state, while increasing the cost of health care, and that those rising insurance rates are the product of too many unwarranted lawsuits resulting in exorbitant damage awards. The legislative fixes typically involve restricting the ability of plaintiffs to bring claims, to prosecute their claims successfully, or to recover full damages if they happen to prevail on their claims. The U.S. Congress sometimes threatens to intervene, replacing what traditionally has been an area of state law with national rules regulating this one area of tort litigation. Even without a new crisis, new legislation might emerge in the near future pursuant to provisions of the Affordable Care Act ("ACA") that encourage states to experiment with medical malpractice reforms by offering to subsidize that experimentation. Additionally, with more people receiving health care in consequence of the ACA, more cases of iatrogenic injury will occur, leading to more claims for compensation and more pressure on legislatures.
Malpractice reform legislation typically is informed by little more than anecdotes, assumptions, and intuition. But the bedrock of good public policy is sound information. The aim of this Article is to provide more complete and more accurate data about the problem of medical error and malpractice litigation in Arizona. Such data have not previously been available to Arizona lawmakers because empirical studies of the problem have not been conducted in Arizona, though they have been in a number of other states.
By extrapolating from data collected in other states on this problem, we are able to estimate the number of injurious adverse events that occur in Arizona hospitals each year (at least 20,000, of which at least 1,300 are deaths); the number of those that are the result of what the law would consider to be negligent care (at least 5,600); the annual cost of those negligently caused injuries to their victims, the victims' insurers, and taxpayers (at least $1.6 billion); how many lawsuits arise (about 2 for every 100 adverse events and 9 for every 100 negligent adverse events); the portion of the economic loss suffered by negligently injured patients returned by Arizona's civil justice system (at most 3.8%); and other data.
Our goal is to assist the Legislature in understanding the problem of iatrogenic injury more fully and more accurately. That improved understanding might lead to recognition of the most serious dimensions of the problem and a reorientation toward creating solutions that will reduce the incidence of avoidable injury in the first place, in tum reducing the heavy cost burden that Arizonans bear as a consequence of iatrogenic injuries, and thereby reducing the need for litigation and its attendant costs.