CODIFYING COMMON LAW 619
report errors out of fear of liability, in the words of one public
health scholar, “is plausible and has intuitive appeal.”^210 Still,
there is reason to be skeptical. One 2005 study found an absence
of “any rigorous evidence show[ing] that fear of malpractice
lawsuits discourages error reporting” and that “contrary to the
conventional wisdom, malpractice liability itself has the potential
to kick-start quality improvement.”^211 For example, rocketing
malpractice premiums in the 1980s (due to anesthesia-related
deaths) impelled the American Society of Anesthesiologists to
launch an aggressive “patient safety campaign” to study
incidents of medical errors in the field.^212 “By the early 1980s,
anesthesiologists recognized that something drastic had to be
done if they were going to continue to be insured,” recalled the
leader of this movement.^213 The campaign, while costly, proved
remarkably successful and has caused an astonishing ten-to-
twenty-fold decrease in deaths over the past few decades.^214
Further, failure to report errors may simply be a deeply
rooted cultural phenomenon rather than an economically rational
response to fears of liability. For example, one health scholar
cited to a survey showing that seventy-five percent of U.S.
doctors failed to report errors to their patients, which was not
markedly different from a showing of sixty-one percent in New
Zealand, “a country that has had no-fault malpractice insurance
for more than three decades.”^215
(Applegrad II), 51 A.3d 119, 124 (N.J. Super. Ct. App. Div. 2012)
(observing that “the Legislature was manifestly concerned” about the
underreporting and analysis of adverse incidents in New Jersey resulting from
the “inhibition” of medical staff from “reporting or criticizing unsafe
practices within the institution”); id. at 127 (observing that “the PSA’s
umbrella of confidentiality” was designed, among other reasons, “to foster
internal self-critical analysis”).
(^210) Annas, supra note 119, at 2065.
(^211) Hyman & Silver, supra note 206, at 894.
(^212) Id. at 919.
(^213) Id. at 920 (quoting Ellison C. Pierce, Jr., ASA Monitoring Guidelines:
Their Origin and Development, 66 AM. SOC’Y ANESTHESIOLOGISTS NEWSL.,
Sept. 2002, at 22, 22, available at http://www.asahq.org/Newsletters/
2002/9_02/feature7.htm).
(^214) Id. at 918.
(^215) See Annas, supra note 119, at 2065.