The Melbourne Law School study found the risks of being sued differed only slightly between the highest and lowest quality nursing homes.
Published in the New England Journal of Medicine, Relationship between Quality of Care and Negligence Litigation in Nursing Homes analysed negligence claims brought against 1465 nursing homes in the US between 1998 and 2006.
Lead author Professor David Studdert said overall, there was less litigation in Australia, but the same basic questions arose about how well medical litigation tracked poor care.
The report examined the relationship between the quality of care delivered by a nursing home and its chances of being sued. Quality levels were determined by a range of measures, including rates of fractures, falls, weight loss, dehydration pressure ulcers and deficiencies found during annual inspections.
”For a few of the quality measures, the litigation risks were lower in nursing homes that excelled, which is what you’d hope,” said Professor Studdert. “The problem is that the effects were quite small. For example, the average annual risk of being sued for facilities with the fewest deficiencies was around 40 percent, while it was 47 percent for facilities with the most deficiencies.”
The most frequent types of harm alleged in the claims were injuries from falls (27 per cent of claims) and pressure ulcers or bed sores (16 per cent).
Nearly two-thirds of the claims led to financial settlements, with payments averaging at $199,794. Nursing homes experienced an average of one claim every 2 years.
Professor Studdert said that all developed countries were confronting hard questions about how well their liability systems are functioning. “This type of research has never been done in Australia, but there is every reason to expect that the same mismatch exists between litigation risk and overall levels of quality within health care institutions.”
“It’s not a matter frivolous lawsuits. It’s more about the growing realisation that lawsuits are a blunt tool for trying to drive improvements in quality of care. Many lawyers believe tort litigation can achieve that, but our findings add to a mounting body of evidence that suggests otherwise. “
Professor Studdert said that the implications for health policy in wealthy countries like the US and Australia were clear. “There is global interest in new approaches to improving quality, such as public reporting of quality scores and payments that are based on performance. The good news is that some of these approaches have brighter prospects than litigation for making care safer.”
Professor David Studdert
Melbourne Law School
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