reaches consistent results, experiments in which two or more medical experts have been asked to evaluate cases have found that even randomly assigned, unpaid experts often reach opposite conclusions when presented with identical facts.50 As such, “unreliability” may result from human factors that are not unique to the legal system. Moreover, while variation in awards is seen by some as arbitrary, others see a tailoring of awards to plaintiffs’ individual circumstances, a virtue that would be lost if damages were determined according to rigid schedules. E. Reducing perverse incentives created by the tort system Many observers believe that providers’ efforts to avoid legal liability result in inefficiencies, such as tests or procedures performed mainly to deter lawsuits, and inhibit communication about medical errors. Proposed initiatives to counter the practice of “defensive medicine” and to encourage more systematic analysis of medical errors include the following: • Practice parameters—guidelines representing experts’ consensus as to what tests or treatments are appropriate in various situations— have been proposed as a means of discouraging unneeded care. Under this proposal, which was implemented in Maine in the 1990s, compliance with the guidelines provides doctors with a complete defense to lawsuits based on the failure to perform certain procedures.51 • The Institute of Medicine (IOM) urges that any reports of medical errors created for use in studying patient safety should be privileged 9 from discovery in lawsuits. Their belief is that systems, rather than people, are responsible for injuries, and efforts to study systemic problems must not be hampered by legal proceedings.52 At present, nearly every state keeps information generated for peer review purposes confidential, but the IOM urges adoption of federal privilege legislation as well (different versions of bills that would do so were passed by the House and Senate during the 108th Congress). • The IOM has also urged experimentation with no-fault compensation systems for avoidable adverse events, arguing that the tort system creates a culture of “shame and blame” that discourages open discussion of medical errors.53 • Academic experts also believe the deterrent effect of the tort system is inexact, given that its incentive effects are diluted by liability insurance. “Enterprise liability,” by which a hospital or large medical practice is charged with financial responsibility for professional malpractice, combined with experience rating, is proposed as a means of creating institutional incentives to increase patient safety. Whether “defensive” medical practices are caused by the tort system (note that they exist in countries without strong legal protections as well)54 and, if so, how much overutilization they cause,55 are questions that remain unsettled. Apart from existing privilege laws and the experiment with practice guidelines in Maine, the implementation of which produced little analysis,56 none of the proposals described above has been tried. Most experts at the forefront of patient safety are convinced that malpractice litigation has a chilling effect on efforts to analyze the causes of medical errors. On the other hand, it should be noted that collection and analysis of medical injury data is proceeding in six states57 and by the American Society of Anesthesiologists despite the continued existence of the tort system. All but the first proposal in this category are designed to improve patient safety and/or injury compensation. F. Strengthening regulation of medical providers Health care providers have historically been self-regulated and have staunchly resisted increased government intervention relating to quality or safety. Nevertheless, there are measures that government could take that do not affect injury compensation but are intended to reduce the underlying problem of medical errors: • Doctor discipline can be strengthened by increasing the resources given to licensing boards, by lowering the standard of proof for disciplinary action from “clear and convincing evidence” to “preponderance of evidence,” and by altering the board’s composition to include more consumer representation.58 • Licensing boards could implement continuing competency assurance programs that require doctors to periodically demonstrate their ability to deliver quality patient care.59 10 • Mandatory error reporting has been recommended by the IOM, along with establishment of patient safety centers to analyze the error reports. Twenty-one states have adopted error reporting laws, though far fewer have created patient safety centers to analyze the reports.60 • Because hospitals are deemed to meet state regulatory requirements by virtue of having private accreditation by specific organizations, so-called “command and control”-type regulations by states are the exception. But examples of these exist in California, which mandates nurse staffing levels,61 and New York, which places limits on residents’ work hours.62 • Another regulatory approach increases consumers’ access to information about errors and malpractice committed by providers, under the theory that market incentives will force improvements. In New York, doctors’ malpractice awards and settlements are included in profiles on a state website.63 A recently approved initiative in