THE TREATMENT JUNE 15, 2009
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As the Times notes today, some advocates of health care reform--including the one that sits in the Oval Office--are thinking about reforming the medical malpractice system. Although a traditionally conservative cause, there's a compelling reason why liberals might support it: The current system doesn't actually compensate most people who are victims of medical errors.
A system that simultaneously changed that fact, while offering physicians some relief. Most studies suggest malpractice lawsuits are not a major reason for high medical spending, even when you account for defensive medicine. But that doesn't mean it doesn't make the medical community unnecessarily anxious.
This week's New England Journal of Medicine outlines three possible paths for reform.
The first approach calls for state experimentation with innovative programs adopted by liability insurers, sometimes called disclosure-and-offer programs, in which health care providers disclose unanticipated outcomes of care to patients and make prompt offers of compensation in appropriate cases. Patients do not waive their right to sue by accepting the offer, but reportedly, few go on to file lawsuits. While he was a senator, President Barack Obama cosponsored legislation to promote this approach.4 These programs appear promising, though they have never been formally evaluated.
The second approach is to shift the adjudication of medical malpractice claims to a new kind of tribunal--either an administrative panel that would award damages on the basis of judgments by neutral experts about the avoidability of the injury or specialized judicial courts presided over by judges with medical expertise. This approach is attractive on its merits; it would address several fundamental problems with the current system, in which juries make decisions with scant guidance on complex scientific issues and what constitutes reasonable damages awards.
A third approach would be to create a federal "safe harbor," retaining the current process of adjudication but insulating physicians from liability if they adhered to evidence-based medical practices. For example, legislation introduced by Senator Ron Wyden (D-OR) in February would create a rebuttable presumption that care was not negligent if the physician followed accepted clinical practice guidelines. Similarly, physicians could be given immunity or a favorable presumption if they practiced in accordance with findings of credible comparative-effectiveness research (CER).
The politics of pushing through malpractice as part of health reform is tricky; trial lawyers, for one may have something to say about it. But, on the merits, it's an interesting idea. And if it helps win over physicians to the cause of health reform, well, that would certainly be helpful too.
--Jonathan Cohn
2 comments
Although I'm a lawyer, I know nothing about medical malpractice, so I speak as a citizen: I would imagine that a doctor who followed clinical practice guidelines -- that is, I'm supposing, one who went by the book and didn't make any mistakes -- could not be found negligent *now*. Am I wrong about that? If I'm not wrong, then I don't see quite what Wyden's bill does. There's some noise about burden-shifting, but if the doctor only gets the favorable presumption upon a demonstration of the ultimate fact -- that he wasn't negligent -- then it doesn't appear that the burden-shifting would do anything. You would still need litigation to investigate whether the condition for the presumption is met -- that the doctor did not in fact do anything wrong. And, if the doctor *did* go by the book, despite a bad outcome, what is there to rebut? In that situation, why does the case even go to a jury? Wouldn't it be knocked out on summary judgment?
Now, if my premise is wrong -- that a doctor who goes by the book could still be found guilty of medical malpractice under current law -- then, it seems to me, that law ought to be changed! But I sense I'm missing something. I had always assumed that medical malpractice insurance was costly because doctors are in a profession where mistakes are both inevitable and can have very serious consequences to patients and plaintiffs, but I didn't think a doctor who made no mistakes faced a likelihood of a guilty verdict.
Perhaps the idea is to formalize to a greater extent those areas where the question of whether there has been a mistake is murky. That is, I suppose in some cases, a plaintiff may argue -- with experts in tow -- that the doctor should have done x and the defendant will argue -- with his experts -- that, no, x is not proper medical practice. A fix to that problem would be to decide beforehand in as many of those murky cases we can anticipate whether proper medical practice calls for x or not such that adhering to that determination would immunize you from liability. I would assume that this has basically already been done to about the extent possible with current scientific knowledge, but plaintiffs, I suppose, could still argue with *that* determination and allow juries to decide whether the whole medical establishment is wrong when faced with a sympathetic plaintiff. If that's the sort of thing Wyden's bill tackles, then that sounds reasonable to me, although I'm somewhat skeptical that it's the main cause of medical malpracitce insurance rates for the same reason mentioned before -- if the doctor follows a standard of care that is widely accepted in the profession, then how is he/she negligent under current law?
- jhildner
June 15, 2009 at 1:37pm
jhildner -- it's about making it easier to win summary judgment. Right now, there's a "battle of the experts" over what constitutes the standard of care. The trial judge looks at this and throws up his/her hands and lets the case go to the jury. And at that point, juries look at a sympathetic injured person and are aware of the presence of insurance for the doctors. There's a lot of "rough justice" that goes on.
I'd rather see movement to a specialized tribunal staffed by people with some level of medical expertise -- e.g., commongood.org/f-healthcourtsfaq.html. Not only will this promote more efficient compensation and greater transparency, but it will also shrink the "litigation risk" that often leads physicians and their insurers to settle non-meritorious claims.
- prnoonan
June 15, 2009 at 2:48pm