Why the medical-malpractice and defensive-medicine system deserves condemnation as a policy crime against humanity
Prepared April 26, 2026
The medical-malpractice field appears, as a public policy system, to be a scam and an utter failure. It is worse than wasteful. It helps perpetuate death and serious injury by making candid error investigation dangerous to the survival of doctors, hospitals, nursing homes, pharmacies, and other health entities, thereby forcing concealment where learning should occur. The central legal question should not be how many malpractice cases can be filed. It should be how many future patients can be saved by immediate, protected investigation and public learning.
This treatise advocates a statute mandating immediate full investigation of all factors converging to cause any serious medical error. Serious should mean death or any injury requiring medical treatment. The facts, interviews, internal analyses, causal maps, and safety recommendations generated by that mandatory investigation should be immunized from discovery in future tort litigation. The de-identified lessons should then be published on a public medical-error website for other health entities, clinicians, patients, regulators, and researchers to learn from.
The statute should not protect a cover-up. It should do the opposite. Ordinary medical error should trigger mandatory investigation, protected candor, corrective action, and public learning. Concealment, falsification, destruction of evidence, retaliation, refusal to investigate, refusal to publish, or knowing repetition of an identified serious hazard should forfeit protection and open the door to tort litigation, punitive sanctions, professional discipline, and institutional penalties.
The policy premise is simple: a serious medical error is a public safety signal, not merely a private lawsuit. The current malpractice system turns too many safety signals into silence.
1. The central failure: malpractice validates lawsuits, not safety
Medical-malpractice litigation is a poor validation system for medical error. It sometimes sorts strong from weak claims after a claim is filed, but it fails as a public safety system because most injured patients never sue, most filed claims produce no payment, plaintiffs rarely win at trial, and the process is slow, expensive, adversarial, and hostile to disclosure.
The Harvard Medical Practice Study III found that only 1.53% of patients with adverse events filed malpractice claims, and that adverse events caused by negligence outnumbered malpractice claims 7.6 to 1. That is not an error-detection system. It is a narrow litigation filter that misses far more negligent injury than it processes. [10]
Once claims are filed, most fail by outcome. A RAND summary of the Jena, Seabury, Lakdawalla, and Chandra study reports that 7.4% of physicians annually had a malpractice claim, while only 1.6% had a claim leading to an indemnity payment. That implies that roughly 78% of claims did not produce a payment. [11] The AMA report on medical-liability claim frequency states that 72% of claims do not involve indemnity payment. [12] At trial, the Bureau of Justice Statistics reported that medical-malpractice plaintiffs won about 23% of 2005 state-court trials, the lowest plaintiff win rate among the tort categories reported. [13]
The strongest defensible statement is therefore this: the vast majority of medical-malpractice claims fail. No-payment outcomes do not always prove that a claim was factually wrong; some valid claims fail because of causation, proof, expert availability, cost, delay, damages limits, or settlement economics. But the outcome data do show that the malpractice system is a high-failure adversarial process. It is not a precision safety instrument.
The malpractice system also drains resources. Studdert, Mello, Gawande, and colleagues found substantial litigation overhead, long resolution times, and imperfect alignment between payment and medical merit. They concluded that outcomes were often, but not perfectly, concordant with merit; claims involving error that received no payment were more common than non-error claims that were paid. [14]
2. The scale of medical harm
The need for a learning statute is not theoretical. The Institute of Medicine estimated in To Err Is Human that at least 44,000 and perhaps as many as 98,000 people died in U.S. hospitals each year from preventable medical errors. The report emphasized that many errors arise from unsafe systems, not simply bad individuals. [1]
Deaths are only the visible tip of the pyramid. In the Utah and Colorado adverse-event study, death occurred in 6.6% of adverse events. The policy shorthand used here — roughly fourteen nonfatal serious adverse events for every death — is derived from that percentage: if 6.6% of adverse events are fatal, then approximately 93.4% are nonfatal, and 93.4 divided by 6.6 is about 14.2. This is not a perfect epidemiological equivalence to every statutorily defined serious injury, but it is a reasonable injury-pyramid estimate for policy discussion. [2]
Recent evidence confirms that preventable harm remains a major problem. A 2023 New England Journal of Medicine study of inpatient safety found adverse events in nearly one in four admissions; approximately one fourth of those events were preventable; 6.8% of admissions had a preventable adverse event; and 1.0% had a preventable adverse event of serious severity or higher. [3] The World Health Organization reports that around 1 in every 10 patients is harmed in health care, that more than half of such harm is preventable, and that unsafe care causes more than 3 million deaths annually worldwide. [4]
The system also fails to capture harm. In 2022, HHS-OIG found that 25% of hospitalized Medicare patients experienced patient harm in October 2018 and that 43% of harm events were preventable. [6] In 2025, HHS-OIG reported that hospitals did not capture about half of patient-harm events among hospitalized Medicare patients; of the events hospitals did capture, few were investigated and fewer led to safety improvements. [5] That finding is a direct indictment of voluntary reporting and ordinary institutional risk management.
The economic stakes are enormous. OECD reported that the economic cost of medical error in the United States was estimated at almost USD 1 trillion in 2008 when flow-on and indirect costs were considered. [7] OECD later estimated that, in developed countries, the direct cost of unsafe care approaches 13% of health spending and that the full global economic cost is over USD 1 trillion annually using a willingness-to-pay approach. [8] These figures do not fully price pain, suffering, grief, loss of trust, or the moral injury inflicted on patients, families, and clinicians.
3. The reverse comparison: failed med-mal claims versus serious medical failure
A useful comparison is the reverse of the usual litigation argument. Instead of asking how often patients sue after error, ask how often filed malpractice claims fail compared with the fatal-or-serious medical-error rate across the total universe of patients seen.
Using the Institute of Medicine death range of 44,000 to 98,000 deaths and the derived fourteen nonfatal serious adverse events per death, the estimated fatal-plus-serious-error numerator is 660,000 to 1,470,000 events annually. [1][2]
For a broad patient-year denominator, CDC reports that 85.2% of adults and 95.1% of children had a visit with a doctor or other health care professional in 2024. [21] The Census Bureau estimated the U.S. population at 340,110,988 in 2024, with 21.5% under age 18. [23] Weighting adult and child visit rates gives approximately 297 million people seen by a health professional in a year. Using that denominator, the fatal-or-serious medical-error rate is approximately 0.22% to 0.49% per patient seen, or about 2.2 to 4.9 fatal-or-serious events per 1,000 patients seen.
| Measure | Approximate rate | Interpretation |
|---|---|---|
| Filed med-mal claims with no indemnity payment | 72% to 78.4% | Most filed claims fail by outcome. [11][12] |
| Fatal-or-serious medical-error rate per patient seen | 0.22% to 0.49% | Small in percentage terms, devastating in human and economic terms. [1][2][21][23] |
| Failed-claim fraction divided by patient-seen error rate | About 150 to 350 times larger | The failed-claim fraction is vastly larger than the serious/fatal error rate across all patients seen. |
On an encounter basis, the comparison is even more dramatic. CDC reports about 1.0 billion physician office visits and 155.4 million emergency-department visits. [21][22] Using only those two categories gives about 1.155 billion encounters, before counting hospital admissions, outpatient surgery, imaging, labs, pharmacy interactions, nursing-home care, home health, and other settings. With that limited denominator, the fatal-or-serious error rate is approximately 0.057% to 0.127%, and the failed-claim fraction is roughly 570 to 1,370 times larger than that encounter-based error rate.
This does not mean serious medical error is acceptable. It means the opposite: because fatal and serious error is small as a percentage of total care but enormous in human and economic cost, the law should focus on prevention, not on a litigation model that largely fails after the harm has already occurred.
4. The proposed statute
The statute should create a mandatory public-safety process for every serious medical error. Serious should mean death or injury requiring medical treatment. The trigger should be broad enough to include error, delayed care, omitted care, medication error, diagnostic error, procedure error, equipment failure, communication breakdown, health information technology failure, inadequate staffing, supervision failure, unsafe policy, unsafe environment, or any convergence of health-care factors that may have caused or contributed to serious harm.
| Duty | Statutory requirement |
|---|---|
| Duty to investigate | Every death or injury requiring medical treatment that may involve medical error triggers immediate mandatory investigation. |
| Duty to preserve | Relevant medical records, EHR audit trails, device data, medication-dispensing data, staffing records, messages, policies, and physical evidence must be preserved at once. |
| Duty to examine convergence | The investigation must identify human, technical, organizational, environmental, diagnostic, medication, staffing, policy, communication, and economic factors. |
| Duty to protect candor | Investigation-generated facts, interviews, deliberations, analyses, causal maps, and recommendations are immune from tort discovery and evidentiary use. |
| Duty to act | The health entity must adopt corrective actions, assign responsibility, and track completion. |
| Duty to teach | De-identified findings must be published on a medical-error learning website. |
| Duty to punish cover-up | Concealment, falsification, retaliation, refusal to investigate, refusal to publish, or knowing repetition after notice forfeits protection. |
The investigation should begin within twenty-four hours. Patients and families should be invited to provide their observations. A preliminary safety alert should issue quickly if an ongoing hazard remains. A final de-identified report should be completed and published on a defined schedule. The report should state what happened, what factors converged, what safeguards failed, what corrective actions were ordered, who is accountable for implementation, and how completion will be verified.
The investigation must not stop at the last clinician in the chain. Serious medical error usually emerges from convergence: fatigue, understaffing, unclear orders, weak handoffs, confusing medication labels, EHR alerts buried in noise, missing diagnostic information, equipment design, production pressure, lack of supervision, patient complexity, inadequate language support, prior unaddressed near misses, or reimbursement systems that reward volume over safety. WHO emphasizes that patient harm often arises from multiple interacting factors and that most mistakes leading to harm are rooted in system or process failures rather than isolated individual fault. [4]
5. Why the investigation must be protected
Without legal protection, the investigation becomes litigation preparation. Every interview becomes deposition rehearsal. Every timeline is drafted for cross-examination. Every candid statement becomes a potential exhibit. Lawyers then fight over documents while the safety lesson remains buried. The next patient inherits the same hazard.
Federal law already recognizes the need for protected safety learning. The Patient Safety and Quality Improvement Act provides privilege and confidentiality protections for patient safety work product, including information collected or created during the reporting and analysis of patient safety events. HHS explains that these protections encourage reporting and analysis of medical errors. [19] The regulations at 42 C.F.R. Part 3, Subpart C provide that patient safety work product is generally privileged, not subject to subpoena or discovery, not subject to FOIA-type disclosure, and not admissible as evidence, subject to listed exceptions. [20]
The flaw is that the current framework is not enough. It is too voluntary, too fragmented, and too easy for serious harm to remain inside private institutional systems. A death or medically treated injury should trigger mandatory learning. The law should make serious harm impossible to bury.
The protection should apply only to the safety investigation itself. Original medical records, billing records, independently existing documents, regulatory reports, and ordinary witness testimony can remain available under ordinary law. The statute should protect the special investigation created for candor, convergence analysis, correction, and public learning. Tort litigation can assign compensation in exceptional cases. The safety investigation must prevent recurrence. Those are different public purposes.
6. Publication: every serious error becomes a public lesson
The statute should require publication of de-identified reports on a public medical-error learning website. Publication must not reveal patient identity, protected health information, or unnecessary clinician identifiers. It should publish what matters for prevention: the setting, hazard, contributing factors, failed safeguards, corrective actions, implementation status, and lessons for similar institutions.
The website should be searchable by specialty, setting, diagnosis, medication, device, workflow, EHR issue, staffing factor, communication failure, patient population, and corrective action. A rural emergency department should learn from a medication error at an academic center. A nursing home should learn from a fall investigation in another state. A surgical center should learn from a retained-object case elsewhere. A pediatric unit should identify an EHR default before a child is harmed.
This is not secrecy. It is structured transparency. The current system already produces secrecy through guarded peer review, closed settlements, defensive documentation, incomplete reporting, and lessons trapped inside institutions. A mandatory learning statute would trade defensive silence for protected disclosure and national learning.
7. Compensation without destructive litigation
A protected investigation does not require abandoning injured patients. Patients and families should receive prompt disclosure, medical-record access, explanation of known facts, apology where appropriate, and practical compensation for economic loss through an administrative mechanism. Economic loss can include additional medical care, rehabilitation, disability-related needs, lost income, and funeral expense. But ordinary negligence litigation should not be the default remedy for ordinary error. It should be reserved for cover-up, intentional misconduct, reckless disregard, or knowing failure to correct a serious identified hazard.
That structure reverses the present incentive. Today, silence protects institutions. Under the proposed statute, candor earns protection and concealment earns litigation. The legal trigger should not be merely “Was there an error?” The trigger should be “Was there a cover-up?”
8. Why would such a system be allowed to continue?
The blunt answer is that the system continues because it is a stable political-economic cartel of incentives, even if no one formally coordinates it. The tort plaintiff bar, defense bar, insurers, hospitals, physicians, labs, imaging centers, device suppliers, expert witnesses, consultants, risk managers, and administrators all have different motives, but the present system lets each of them survive or profit while the public pays the bill.
The direct malpractice industry is expensive, but the larger scandal is defensive medicine. If defensive medicine is even close to 10% of U.S. health spending, then it is a roughly USD 530 billion annual burden in a USD 5.3 trillion health system. [9] That dwarfs malpractice premiums, malpractice payouts, plaintiff-lawyer fees, defense-lawyer fees, and insurer claims-handling costs. It also explains why medicine has not truly destroyed the malpractice system: the same liability fear that feeds the lawyers also feeds a huge volume of medical revenue.
There are several cost layers. AM Best reported that the U.S. medical professional liability market reached USD 13.02 billion in 2024 direct premiums written. [15] The Insurance Information Institute reported USD 1.833 billion in 2024 medical professional liability defense and cost-containment expenses; because that amount was 28.8% of incurred losses, incurred losses were roughly USD 6.37 billion by calculation. [16] Mello, Chandra, Gawande, and Studdert estimated the overall medical-liability system, including defensive medicine, at USD 55.6 billion in 2008 dollars, or 2.4% of total health spending, with defensive medicine the largest component. [17] If the same 2.4% share were applied to 2024 national health spending of USD 5.3 trillion, the figure would be about USD 127 billion. If one uses a high-end 10% defensive-medicine theory, the figure is about USD 530 billion. [9]
| Cost category | Approximate amount | Meaning |
|---|---|---|
| Direct MPL premiums | USD 13.02 billion in 2024 | Premiums paid into the medical professional liability insurance market. [15] |
| Defense and cost containment | USD 1.833 billion in 2024 | Defense lawyers, experts, claims investigation, litigation management, and related expenses. [16] |
| Insured incurred losses proxy | About USD 6.37 billion in 2024 | Derived from DCCE of USD 1.833 billion equaling 28.8% of incurred losses. [16] |
| Mello total liability-system estimate | USD 55.6 billion in 2008 dollars | Includes indemnity, administrative/legal/insurance overhead, clinician time, and defensive medicine. [17] |
| 2.4% scaled to 2024 NHE | About USD 127 billion | 2.4% of USD 5.3 trillion national health spending. [9][17] |
| 10% defensive-medicine theory | About USD 530 billion | High-end advocacy estimate; far above CBO and Mello estimates. [9][18] |
Who gets the money? Plaintiffs and families receive indemnity payments, but only in a minority of filed claims and often after years of conflict. Plaintiff lawyers usually receive contingency fees from recoveries. Defense lawyers, experts, and claim vendors are paid to resist claims, whether claims are valid or weak. Insurers receive premiums, invest reserves, pay claims and defense costs, pay reinsurance and brokers, and may earn underwriting or investment profit. [11][12][14][15][16]
But doctors, hospitals, imaging centers, laboratories, consultants, and other health entities may receive the much larger stream: revenue from defensive tests, referrals, admissions, imaging, consultations, procedures, monitoring, and documentation-heavy care. A CT scan ordered partly for legal protection is still a billed CT scan. A consult ordered to protect the chart is still a billed consult. A hospital admission ordered “to be safe” is still revenue. Defensive medicine can be economically irrational for the country while economically rational for the provider.
That is why doctors and hospitals do not stop the system. Their incentives are conflicted. They dislike lawsuits, premiums, depositions, reputational attack, and litigation stress. But fee-for-service medicine often pays them for doing more. Health entities attack payouts and premiums, but they do not always attack the deeper engine of overutilization. They want less liability risk, but not necessarily less reimbursed volume. That contradiction helps the system continue.
Defensive medicine is medical care that is legally useful but not medically necessary. If a procedure is truly not medically necessary and is knowingly billed to Medicare or Medicaid as medically necessary, that can become a False Claims Act problem. HHS-OIG states that it is illegal to submit Medicare or Medicaid claims that a provider knows or should know are false or fraudulent. [24] The Justice Department has brought False Claims Act cases involving allegedly medically unnecessary services. [25]
Not every defensive order is legal fraud. Many defensive tests have some arguable clinical basis. A clinician may say the test was ordered to rule out a dangerous condition. That may be debatable, wasteful, or liability-driven without being fraudulent. But defensive medicine exposes a fraud-like contradiction in the system: the law pressures clinicians to order care they may not believe is medically necessary, and the payment system reimburses that care as if it were medically necessary.
Unnecessary care is not merely financial waste. It can physically injure patients. The AMA Journal of Ethics has described tests or procedures ordered out of fear of litigation as unnecessary and potentially iatrogenic. [26] The ABIM Foundation’s Choosing Wisely campaign was designed to help physicians and patients discuss overuse, and it involved more than 80 specialty societies producing hundreds of recommendations on overused tests and treatments. [27]
Extra imaging creates radiation exposure and false positives. Extra testing creates cascades. Extra procedures create complications. Extra hospitalization creates infection, delirium, falls, and medication exposure. Extra charting and legal ritual consume clinician attention. If the system rewards unnecessary intervention, it does not merely waste money. It creates physical risk.
Why is the system allowed to continue? Because the costs are diffuse and the benefits are concentrated. Patients, taxpayers, employers, and premium payers absorb the total cost. But the beneficiaries are organized and immediate: plaintiff lawyers get fees, defense lawyers get hourly work, insurers get premiums and float, experts get paid, hospitals get reimbursed, physicians get paid, vendors get volume, and politicians avoid the charge that they are taking away an injured patient’s day in court.
The public experiences it as theft-like legalized extraction. The tort side monetizes injury after the fact. The medical side monetizes fear before the fact. The public pays both bills, financially and physically. Patients are harmed by errors that are concealed, by lessons that are not learned, and by unnecessary care that exposes them to risk without medical need.
9. The rule that should replace malpractice default litigation
The statute should create a clean public bargain:
Every serious medical error must be reported immediately.
Every serious medical error must be investigated fully.
Every converging factor must be identified.
Every safety lesson must be published in de-identified form.
Every investigation-generated fact, interview, deliberation, and recommendation must be immune from tort discovery.
Every identified hazard must be corrected, with implementation tracked.
Every cover-up forfeits protection and triggers litigation exposure, punitive sanctions, and regulatory consequences.
The statute should also include anti-retaliation protections for staff, patients, and family members who report harm or cooperate with investigations. It should require the public website to de-identify reports while retaining enough factual detail to allow practical learning. It should create audit authority to ensure that hospitals and other health entities do not underreport serious harm. It should impose escalating penalties for failure to report, failure to investigate, failure to correct, or failure to publish.
10. Conclusion
Every serious medical error contains a lesson. Some contain many. The tragedy is not only that harm occurred. The deeper tragedy is when the same harm happens again because the first lesson was hidden, privileged only for defense, settled into silence, or never investigated at all.
Medical malpractice litigation is not a patient-safety system. It is a high-failure, high-cost, adversarial process that induces silence. If every serious medical error were litigated as a default, no health entity could function openly. If serious errors are hidden to avoid litigation, patients die from repeated hazards. The answer is not ordinary immunity. The answer is mandatory investigation, protected candor, public learning, practical compensation, and zero tolerance for cover-up.
The law should stop litigating medical error into secrecy. It should make every death and every medically treated injury a mandatory public lesson. It should protect truth-telling and punish concealment. It should put prevention ahead of professional enrichment. It should make the next patient safer than the last.
11. The moral indictment: annual mass death, massive injury, suffering, and economic rent seeking
The yearly toll makes this more than an inefficient compensation system. Using the Institute of Medicine death range of 44,000 to 98,000 preventable hospital deaths and the derived injury-pyramid estimate of roughly fourteen nonfatal serious adverse events for every death, the United States faces approximately 660,000 to 1,470,000 fatal-or-serious medical-error events every year. [1][2] This is not a sporadic accident pattern. It is annual mass death and massive injury, repeated year after year, with disability, suffering, grief, lost work, family disruption, and loss of trust layered on top of the visible statistics.
The economic cost is correspondingly massive. OECD estimated that the economic cost of medical error in the United States was almost USD 1 trillion in 2008 when indirect and flow-on costs were included, and later framed unsafe care as a trillion-dollar global economic burden. [7][8] In a USD 5.3 trillion U.S. health system, a 10% defensive-medicine burden would be roughly USD 530 billion annually. [9] Even if lower estimates are used, the recurring burden is large enough to dwarf the direct malpractice industry and to justify treating the problem as a national human-safety emergency rather than ordinary professional friction.
In moral and policy terms, a rent-seeking system that predictably permits this annual toll to continue deserves condemnation as a crime against humanity. This treatise uses that phrase as a moral indictment, not as a claim that any court has adjudicated the malpractice-defensive-medicine system under the technical international-law definition. The Rome Statute defines crimes against humanity as certain acts committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack. [28] The point here is that the scale of preventable death, serious injury, suffering, and economic extraction is so large that public policy should treat it with the urgency normally reserved for atrocities, not with the complacency reserved for a private insurance dispute.
If such harm were inflicted by one visible actor, the public would recognize it as intolerable. Because it is produced by incentives — litigation fear, insurance economics, defensive billing, institutional silence, and political protection of organized interests — it is normalized. That normalization is the moral crime. The cure is not another round of litigation. The cure is mandatory investigation, protected candor, public learning, practical compensation, and severe penalties for cover-up.
References and Source Notes
Citations are placed here at the end of the treatise, as requested. Numbers in brackets in the text refer to the source notes below. Calculations in the treatise are derived from the cited source data and are approximate.
[1] Institute of Medicine, To Err Is Human: Building a Safer Health System, report brief. Source for the 44,000 to 98,000 annual preventable hospital death estimate and the systems-based patient-safety framing. Source link URL: https://nap.nationalacademies.org/resource/9728/To-Err-is-Human-1999--report-brief.pdf
[2] Thomas EJ, Studdert DM, Burstin HR, et al., Incidence and Types of Adverse Events and Negligent Care in Utah and Colorado, Medical Care, 2000. Source for death occurring in 6.6% of adverse events, supporting the derived approximately fourteen nonfatal adverse events per death ratio. Source link URL: https://pubmed.ncbi.nlm.nih.gov/10718351/
[3] Bates DW, Levine DM, Salmasian H, et al., The Safety of Inpatient Health Care, New England Journal of Medicine, 2023. Source for nearly one in four admissions involving adverse events, about one fourth preventable, 6.8% preventable adverse-event admissions, and 1.0% preventable serious-or-higher admissions. Source link URL: https://www.nejm.org/doi/full/10.1056/NEJMsa2206117
[4] World Health Organization, Patient Safety fact sheet. Source for global patient-safety facts, preventability, system factors, and the need for systems rather than blame-focused approaches. Source link URL: https://www.who.int/news-room/fact-sheets/detail/patient-safety
[5] HHS Office of Inspector General, Hospitals Did Not Capture Half of Patient Harm Events, 2025. Source for the finding that hospitals did not capture about half of patient harm events and that captured events were rarely investigated or converted into improvements. Source link URL: https://oig.hhs.gov/reports/all/2025/hospitals-did-not-capture-half-of-patient-harm-events-limiting-information-needed-to-make-care-safer/
[6] HHS Office of Inspector General, Adverse Events in Hospitals: A Quarter of Medicare Patients Experienced Harm in October 2018, 2022. Source for 25% of hospitalized Medicare patients experiencing harm and 43% of harm events being preventable in the OIG review. Source link URL: https://oig.hhs.gov/reports/all/2022/adverse-events-in-hospitals-a-quarter-of-medicare-patients-experienced-harm-in-october-2018/
[7] OECD, The Economics of Patient Safety, 2017. Source for the estimate that the economic cost of medical error in the United States was almost USD 1 trillion in 2008 when indirect and flow-on costs were included. Source link URL: https://www.oecd.org/content/dam/oecd/en/publications/reports/2017/06/the-economics-of-patient-safety_258f9682/5a9858cd-en.pdf
[8] OECD, The Economics of Patient Safety: From Analysis to Action, 2022. Source for the broader economic framing: direct cost of unsafe care in developed countries approaching 13% of health spending and global economic cost exceeding USD 1 trillion annually. Source link URL: https://www.oecd.org/en/publications/the-economics-of-patient-safety_761f2da8-en.html
[9] Centers for Medicare & Medicaid Services, National Health Expenditure Fact Sheet. Source for U.S. national health expenditures of USD 5.3 trillion in 2024, or 18.0% of GDP. Source link URL: https://www.cms.gov/data-research/statistics-trends-and-reports/national-health-expenditure-data/nhe-fact-sheet
[10] AHRQ PSNet summary of Localio et al., Relation Between Malpractice Claims and Adverse Events Due to Negligence. Source for 1.53% of patients with adverse events filing claims and the 7.6-to-1 ratio of negligent adverse events to malpractice claims. Source link URL: https://psnet.ahrq.gov/issue/relation-between-malpractice-claims-and-adverse-events-due-negligence-results-harvard-medical
[11] RAND Research Brief, Malpractice Risk, by Physician Specialty, summarizing Jena et al. Source for 7.4% annual physician claim rate and 1.6% annual claim-with-payment rate, implying about 78% of claims did not lead to payment. Source link URL: https://www.rand.org/pubs/research_briefs/RB9610.html
[12] American Medical Association, Medical Liability Claim Frequency Among U.S. Physicians, Guardado, 2016–2022. Source for the statement that 72% of claims do not involve indemnity payments. Source link URL: https://www.ama-assn.org/system/files/policy-research-perspective-medical-liability-claim-frequency.pdf
[13] Bureau of Justice Statistics, Civil Bench and Jury Trials in State Courts, 2005. Source for medical-malpractice plaintiff win rates at trial of about 23%. Source link URL: https://bjs.ojp.gov/content/pub/pdf/cbjtsc05.pdf
[14] Studdert DM, Mello MM, Gawande AA, et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, New England Journal of Medicine, 2006. Source for closed-claim analysis, payment/error concordance, litigation overhead, and limitations of malpractice as a sorting mechanism. Source link URL: https://www.nejm.org/doi/full/10.1056/NEJMsa054479
[15] AM Best, Best’s Rankings: U.S. Medical Professional Liability 2024 DPW Rose 5.4%. Source for 2024 direct premiums written of USD 13.02 billion in the U.S. medical professional liability market. Source link URL: https://news.ambest.com/newscontent.aspx?altsrc=9&refnum=266815
[16] Insurance Information Institute, Facts + Statistics: Product Liability. Source for medical professional liability defense and cost-containment expense of USD 1.833 billion in 2024 and the 28.8% relationship to incurred losses. Source link URL: https://www.iii.org/fact-statistic/facts-statistics-product-liability
[17] Mello MM, Chandra A, Gawande AA, Studdert DM, National Costs of the Medical Liability System, Health Affairs, 2010. Source for the USD 55.6 billion 2008 estimate and 2.4% of health spending estimate for the medical-liability system, including defensive medicine. Source link URL: https://pubmed.ncbi.nlm.nih.gov/20820010/
[18] Congressional Research Service, Medical Malpractice Insurance and Health Reform, 2011. Source for CBO-related discussion that federal tort reforms were estimated to reduce national health spending by about 0.5% and for the statement that defensive-medicine estimates are contested. Source link URL: https://www.everycrsreport.com/files/20110208_R40862_5998ebb1387385eb97f64dba73b9854de0ec2289.pdf
[19] HHS Office for Civil Rights, Understanding Confidentiality of Patient Safety Work Product. Source for the federal Patient Safety and Quality Improvement Act framework and privilege/confidentiality protections for patient safety work product. Source link URL: https://www.hhs.gov/hipaa/for-professionals/patient-safety/index.html
[20] eCFR, 42 C.F.R. Part 3, Subpart C — Confidentiality and Privilege Protections of Patient Safety Work Product. Legal source for privilege, confidentiality, non-discovery, non-subpoena, and non-admissibility protections, subject to exceptions. Source link URL: https://www.ecfr.gov/current/title-42/chapter-I/subchapter-A/part-3/subpart-C
[21] CDC/NCHS FastStats, Ambulatory Care Use and Physician Office Visits. Source for 2024 adult and child percentages with a doctor or other health professional visit and approximately 1.0 billion physician office visits. Source link URL: https://www.cdc.gov/nchs/fastats/physician-visits.htm
[22] CDC/NCHS FastStats, Emergency Department Visits. Source for 155.4 million emergency department visits. Source link URL: https://www.cdc.gov/nchs/fastats/emergency-department.htm
[23] U.S. Census Bureau QuickFacts, United States. Source for 2024 U.S. population estimate of 340,110,988 and 21.5% under age 18. Source link URL: https://www.census.gov/quickfacts/fact/table/US/PST045224
[24] HHS Office of Inspector General, Fraud & Abuse Laws. Source for the rule that it is illegal to submit Medicare or Medicaid claims a provider knows or should know are false or fraudulent. Source link URL: https://oig.hhs.gov/compliance/physician-education/fraud-abuse-laws/
[25] U.S. Department of Justice, Florida Physician to Pay $26.1 Million to Resolve False Claims Allegations, 2013. Example of a False Claims Act resolution involving allegations of billing Medicare for medically unnecessary services. Source link URL: https://www.justice.gov/archives/opa/pr/florida-physician-pay-261-million-resolve-false-claims-allegations
[26] AMA Journal of Ethics, Choosing Unwisely, 2020. Source for the proposition that diagnostic tests or procedures ordered out of fear of litigation can be unnecessary and potential sources of iatrogenic harm. Source link URL: https://journalofethics.ama-assn.org/article/choosing-unwisely/2020-09
[27] ABIM Foundation, Choosing Wisely Initiative. Source for the Choosing Wisely campaign and specialty-society recommendations addressing overused tests and treatments. Source link URL: https://abimfoundation.org/what-we-do/choosing-wisely
[28] Rome Statute of the International Criminal Court, Article 7 — Crimes against humanity. Source for the technical international-law definition of crimes against humanity, used here to distinguish the treatise’s moral and policy condemnation from a formal adjudicated legal charge. Source link URL: https://www.ohchr.org/en/instruments-mechanisms/instruments/rome-statute-international-criminal-court
Calculation note
The patient-seen denominator is calculated as 340,110,988 multiplied by a weighted visit-rate estimate: 78.5% adults times 85.2% adult visit rate, plus 21.5% children times 95.1% child visit rate, yielding approximately 297,013,824 people seen by a doctor or other health professional. The fatal-plus-serious numerator is calculated as the IOM death estimate multiplied by fifteen: one fatal event plus fourteen nonfatal serious adverse events per death, yielding 660,000 to 1,470,000 events. The resulting patient-seen error rate is approximately 0.22% to 0.49%. The encounter-based denominator uses 1.0 billion physician office visits plus 155.4 million emergency-department visits, yielding approximately 0.057% to 0.127%.
