Recently, a defense attorney hosted Malpractice 101 on the physician social networking site, A multitude of questions were answered.

Sprinkled in the answers was the conclusion the tort system has a number of salutary effects – namely patient safety. The moderator recited the (now stale) observation from the 1980’s. To paraphrase: Anesthesiologists embraced pulse oximetry because their med mal premiums were too high. They identified the source of high premiums – anoxic injuries and deaths, and crafted a solution. Pulse oximetry. Once embraced, their ORs became safer, and premiums went down.

While I will not quibble that pulse oximetry is a good thing, (it is), I would argue it was a basic innovation that was embraced by the profession, irrespective of premium cost. Here’s why. If premium sensitivity were the driving force, then those with the highest premiums should have adopted pulse oximetry the fastest. A bit behind would have been those in tort reform states. And, slowest to embrace, would have been those who are immune to direct litigation – eg. military physicians. Pulse oximetry was embraced at the same rate among different types of anesthesiologists. The innovation seemed worthwhile, and the field, as a whole, agreed. No anesthesiologist takes pride in being responsible for their patient never waking up. So, once a cost effective solution emerged, everyone jumped on the band wagon.

There is overwhelming data to suggest that fear of litigation has an unintended effect on patient safety. Fear of litigation drives exposure of unsafe systems underground. Once underground, no one learns of the impending problems until after the fact. My take: Litigation is a foolish approach to promoting patient safety.

Agree or disagree? Let’s hear from you.