September 13, 2004

Real malpractice reform?

I'm still without domestic internet service, so I'm forced to blog on the fly whenever I can. If I never face any problems worse than this, I'll have truly lived a charmed life.

Ahem. It seems that physicians who propose "malpractice reforms" that amount to simply capping noneconomic damages are asking for too much, and for too little.

They ask for too much, because their proposals would artificially shield them from responsibility in cases where patients have suffered because of negligent treatment. They also ask for too little, because damage caps will not fix many of the most serious problems caused by our current malpractice liability system. These problems include the mismatch between injured patients and compensated patients, the reluctance of physicians to report errors and mistakes, and the lack of incentives for organizations to pay for systemic quality improvements, among many others.

It's not even clear that caps would necessarily result in lower malpractice insurance premiums. Even if it did, physicians would still bear the psychological burden of knowing that a malpractice suit could blindside them even if they never made a single mistake.

Arbitrary caps on damages make far more sense in other contexts, such as products liability. Although I'm deeply skeptical of them, supporters of these kinds of caps can argue that society would be better off overall with the caps in place. The Republican Party's "tort reform" campaign relies on these arguments, and to the extent that the Republicans also tend to support caps on malpractice damages, it's mostly as an afterthought to their attempts to shield manufacturers from large jury awards.

If physicians want to see real malpractice reforms that will solve many of the problems they identify with our current system, they're going to have to move beyond the rhetoric of caps. They're going to have to convince patients that they aren't simply trying to disavow responsibility for their mistakes.

One possible solution is enterprise liability for medical malpractice. This idea was floated in the debate over Clinton's health care proposals, but has largely been ignored since the Clinton plan turfed. Rather than hold individual physicians legally responsible for malpractice, hold the hospital or the health plan responsible.

It's an intriguing idea. And as soon as I get some internet access in my apartment, I'm sure I'll have more to say about it.

Posted by Carey at September 13, 2004 09:40 PM

That approach has helped engineers avoid the malpractice lawsuits that doctors are complaining about. The employer takes the liability burden, but then engineers don't earn nearly as much as doctors so maybe it is just the injured going after the deep pockets.

Posted by: Fakeo Nameo at September 16, 2004 07:02 PM

What do you think about elections?

Posted by: James Lekheto at October 2, 2004 04:47 AM - fine thing :)

Posted by: Maminov Onopko at October 3, 2004 04:03 PM