Mary Chaffee


As many as 400,000 people die each year, and a million are injured, by preventable medical injuries sustained in the U.S. health system. Collection of data to enhance understanding of how unintended medical injuries happen is an essential part of harm-reduction strategies. While health system data collection and reporting processes have improved in recent years, the scope and intractability of the medical injuries problem demands new efforts. The legal system could contribute valuable medical injury data to patient safety efforts but current practices largely prevent it. In medical malpractice claims where parties settle, case information is routinely protected from disclosure by confidentiality agreements thus any medical injury information is inaccessible. Parties who litigate may convince a court to seal their case files, thereby keeping data out of investigator’s reach. Insurers have extensive claim files, rich with information, but provide access only at their discretion. Most notably, fewer than 3% of patients who are injured in the health system ever bring a claim. Therefore, a vast pool of medical injury information lies dormant, never developed through legal claims. This Note argues that the tort system’s social utility purpose would be better served if more information about medical harm were exposed. Though numerous barriers would need to be overcome, data of value to the health system, and the patients who depend on it, could be extracted from (1) out-of-court settlements, (2) sealed court records, (3) medical malpractice insurance claims, and (4) by stimulating medical malpractice claims to create a larger data pool.



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