The first phase of my research is focused on prevention of medical errors. As I begin to examine the intersection of error prevention and medical malpractice litigation in the United States, I am consistently confronted with the term “deterrence.” Deterrence is often cited as one of the goals of medical malpractice litigation. Deterrence is defined as, “the act of making someone decide not to do something.” I understand the goal of deterrence in the criminal justice system, but I just cannot agree that deterrence is a valid goal in medical malpractice litigation, because it implies that the injury-causing action (or inaction) is intentional. Arguing that healthcare providers need to be deterred from committing errors that injure their patients is like arguing that parents need to be deterred from harming their children – while it may be true in a small percentage of cases, healthcare providers are not in the business of harming patients.
Dismissing deterrence as a valid goal of medical malpractice litigation is not to dismiss the need for error prevention. However, in order to prevent errors, the cause of the error must be properly identified, and litigation is not a reliable source of identification. First, according to the Institute of Medicine’s report, To Err is Human: Building a Safer Health System, most errors are caused by systemic problems, not individual providers, and blaming an individual does little to prevent errors and improve patient safety. Because medical malpractice litigation generally focuses on the actions of individual defendant providers, it often fails to identify the relevant systemic problem. Second, the medical malpractice system cannot succeed in error prevention if the claims under its review do not consistently involve malpractice. A study that reviewed 1,406 medical malpractice decisions found that courts properly ruled only 75% of the time, which suggested that, “a significant number of medical malpractice decisions were not reliably linked to the presence of negligent provider care.” If healthcare providers do not recognize medical malpractice litigation as a reliable identifier of adverse events, the system will not serve as a catalyst for error prevention.
Assuming that healthcare providers need to be deterred from injuring patients also contributes to the prevalent blame culture in healthcare that is counterproductive to error prevention. The estimated annual death toll in the U.S. resulting from preventable medical errors has risen from 98,000 in 1999 to 250,000 in 2016, and effective error prevention is needed now more than ever. The World Health Organization (WHO), prompted by the To Err is Human report, recommended the implementation of non-punitive error reporting and learning systems to encourage the detection and prevention of errors. Many countries have followed the WHO’s recommendation and implemented error reporting and learning systems, both voluntary and mandatory and at varying institutional, regional, and national levels, each of which have drawbacks and advantages. One universal impediment to successful error reporting and learning systems is a punitive culture in which providers fail to report for fear of sanctions or penalties.
I am not dismissing the goal of deterrence to defend healthcare providers, but rather to redefine the way we seek to prevent harm caused by medical malpractice. It is critical to recognize that, for the most part, healthcare providers do not need to be scared into providing non-negligent patient care, but that they share the common goal of patient safety and play a critical role in successful error prevention.
Germany’s 2013 Patients’ Rights Act (Patientenrechtegesetz) aims to both strengthen patients’ rights following treatment errors and promote error avoidance culture. The law mandates the implementation of voluntary near-miss error reporting systems. It also protects the confidentiality of data collected in error reporting systems. In the first phase of my research, I will study the implementation and effectiveness of Germany’s error reporting and learning systems. In the second phase of my research, I will discuss how strengthening patients’ rights improves resolution of disputes following medical errors.
Finally, while medical malpractice litigation does not serve the goal of deterring or preventing medical errors, it does serve another shared goal of compensating injured patients. According to a 2010 national survey, 9 out of 10 physicians agree that patients injured as a result of malpractice should be compensated. In the third phase of my research, I will discuss why traditional tort reform measures in the U.S (including damages caps) are ineffective and what we can learn from Germany’s medical malpractice litigation system.
 Christopher M. Burkle, Medical malpractice: can we rescue a decaying system?. NCBI (Nov. 22, 2016, 11:52 a.m.), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3068892/.
 Deterrence. (n.d.). Retrieved November 22, 2016, from http://www.merriam-webster.com/dictionary/deterrence.
 L. T. Kohn, J. Corrigan, & M. S. Donaldson, To err is human: Building a safer health system. National Academy Press (Nov. 22, 2016, 11:34 a.m.), http://www.nationalacademies.org/hmd/~/media/Files/Report%20Files/1999/To-Err-is-Human/To%20Err%20is%20Human%201999%20%20report%20brief.pdf.
 Burkle, supra.
 Id. (citing Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med. 2006;354(19):2024-2033.).
 Kohn, et al., supra.
 Vanessa McMains, Johns Hopkins study suggests medical errors are third-leading cause of death in U.S. HUB, Johns Hopkins University (Nov. 22, 2016, 11:40 a.m.), https://hub.jhu.edu/2016/05/03/medical-errors-third-leading-cause-of-death/.
 World Alliance for Patient Safety WHO Draft Guidelines for Adverse Event Reporting and Learning Systems: From Information to Action. Geneva, World Health Organization, 2005.
 Reporting and learning subgroup of the European Commission PSQCWG, Key findings and recommendations on Reporting and learning systems for patient safety incidents across Europe, European Commission, Patient Safety and Quality of Care working group (Nov. 22, 2016, 11:44 a.m.), http://ec.europa.eu/health/patient_safety/docs/guidelines_psqcwg_reporting_learningsystems_en.pdf.
 Id. E.g. Institute for Safe Medicine Practices, Discussion Paper on Adverse Event and Error Reporting in Healthcare, ISMP (Nov. 22, 2016, 11:40 a.m.), https://www.ismp.org/Tools/whitepapers/concept.asp.
 Gesetz zur Verbesserung der Rechte von Patientinnen und Patienten; Bundesgesetzblatt (Federal Gazette, BGBI) I 277 ff of 25 February 2013.
 Burkle, supra (citing Jackson Healthcare. Physician study: quantifying the cost of defensive medicine: lawsuit driven medicine creates $650-$850 billion annual healthcare costs. http://www.jacksonhealthcare.com/healthcare-research/healthcare-costsdefensive-medicine-study.aspx. Accessed February 25, 2011.).