Quality no protection against negligence claims

If you think providing a high quality aged care service is protection against negligence claims, think again, suggests a Melbourne University study

Above: Professor David Studdert, University of Melbourne

By Keryn Curtis

Providing high quality care does little to protect aged care providers from being sued for negligence, according to a study by  researchers from the University of Melbourne, published in the New England Journal of Medicine.

The study, 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.  It found that the best-performing nursing homes are sued only marginally less than the worst–performing ones, leading to a conclusion that litigation may be a weak incentive in driving quality care.

Lead author, Professor David Studdert, a lawyer and epidemiologist, is Professor & Federation Fellow at Melbourne University Law School, as well as the university’s School of Population Health. He said overall, there was less litigation in Australia, but the same basic questions arose about how well medical litigation tracked poor care.  

“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.”  

Quality levels in the study were determined by a range of measures, including rates of fractures, falls, weight loss, dehydration, pressure ulcers and deficiencies found during annual inspections.  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).

Nursing homes experienced an average of one claim every 2 years. Nearly two-thirds of the claims led to financial settlements, with payments averaging $199,794. 

Litigation a blunt instrument

Professor Studdert emphasised that the study results did not suggest any frivolous nature of negligence lawsuits; rather “the growing realisaton that lawsuits are a blunt tool for trying to drive improvements in quality of care.”

“Many lawyers believe tort litigation can achieve that [improvements in quality of care], but our findings add to a mounting body of evidence that suggests otherwise.”*

Professor Studdert said that all developed countries were confronting difficult questions about how well their liability systems are functioning. 

“There was a big round of tort reform in Australia in the early 2000s and the US and UK have similar concerns about rising health litigation.  It is an issue that is high on the agenda

“In the 1990s it was considered that we had more of a pro-plaintiff environment.  Now it is considered to be a more pro-defendant tort environment, which raises the question: has the pendulum swung too far?  Where do we think the pendulum should be?  How well is tort litigation functioning? This study suggests not very well,” Professor Studdert said.

While Professor Studdert says this type of research has not been done in Australia, he believes there is every reason to expect the same mismatch between risk of litigation and overall levels of quality within health care institutions here.  

Finding better quality incentives

He said there is global interest in finding new health policy approaches to improving quality in healthcare, such as public reporting of quality scores and payments that are based on performance.  The good news, he said, was that some of these approaches have brighter prospects than litigation for making care safer. 

“Quality scores and ratings systems haven’t been used much in Australia but there are plenty of examples in the US and Europe. Do they work? We are still trying to figure that out but there is reasonably good evidence that public reporting drives quality in health services generally.  

“As for pay-for-performance approaches, we don’t really know.  But there are encouraging signs out of UK where the NHS has introduced this kind of scheme with GPs and there are pockets of promise in the US with performance related payments.”

Professor Studdert said he was attracted to idea of a star system in health and aged care.

“From a health policy point of view it is appealing because the ideal is to have providers competing on quality, not just on volume or resident numbers or throughput.  Of course there are lots of challenges and potential problems but that doesn’t mean we shouldn’t be trying,” he said.

“Frankly, if it was my mum, it would be information I would value.  I wouldn’t see it as definitive and of course you would want to take into consideration the feel of the place by walking around and talking to staff and residents, and there are cost and location considerations too,” he said.

Professor Studdert said the likely changes to the aged care system – assuming the main thrust of the Productivity Commission’s draft report into Caring for Older Australians is adopted by Government – is even more reason to measure quality in a way that is transparent to consumers.  

“When there are choices, you need good criteria to help inform the choices you make.”

* Another role of tort litigation is to drive compensation for people and this aspect of the litigation was not addressed or measured in the study.    

Reference: Relationship between Quality of Care and Negligence Litigation in Nursing Homes, NEJM 364;13 March 31, 2011


  • David M. Studdert, L.L.B., Sc.D – Melbourne Law School & Melbourne School of Population Health, University of Melbourne
  • Matthew J. Spittal, Ph.D. – Melbourne School of Population Health, University of Melbourne
  • Michelle M. Mello, J.D., Ph.D – Department of Health Policy and Management, Harvard School of Public Health, Boston
  • James O’Malley, Ph.D. – Department of Health Care Policy, Harvard Medical School, Boston
  • David G. Stevenson, Ph.D. – Department of Health Care Policy, Harvard Medical School, Boston 
Tags: david-g-stevenson, david-m-studdert, department-of-health-care-policy, department-of-health-policy-and-management, harvard-medical-school, james-omalley, matthew-j-spittal, melbourne-law-school, melbourne-school-of-population-health, michelle-m-mello, nejm, new-england-journal-of-medicine, nursing-homes, ratings-systems, tort-litigation, university-of-melbourne,

1 thought on “Quality no protection against negligence claims

  1. My mother was neglected until she got gangrene and wounds through to her tendons in her calf ,gangrene on her heel and obvious gangrene black spots on her toes. She only received 2 panadol as pain relief. The injuries were initially inflicted by the home and then there was ‘cover up'(quote from one of the whistle -blowing staff members).

    Tell me that litigation is not needed in this case and public humiliation.

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