November 14, 2004

Malpractice reform

William R. Brody, the president of Johns Hopkins University, provides a pithy account of what's wrong with our system of medical justice.

If this piece suffers from anything, it's that Brody is just complaining. Physicians need to start offering some real suggestions--beyond just caps on damage awards--for making the system work better.

"Myth No. 2: We need to preserve the current legal system to guarantee a fair hearing and provide compensation for patients harmed by the health care system."

If we feel that patients should be compensated for iatrogenic medical injuries, why should we make this compensation dependent upon proving fault? Since the costs of medical malpractice insurance are passed on to employers, insurers, and ultimately to patients, in some sense we are all purchasing insurance against injuries caused by medical treatment. But our fault-based system means that even though we're all buying this insurance, only some of us who are injured will be able to collect. If we can't get a good lawyer to take our case; if the evidence has been flushed down the toilet; if no physicians will testify on our behalf; we're out of luck. Sorry.

One solution would be to adopt a no-fault system, where all injuries are compensated regardless of whether anyone was negligent. Of course, we'd still be faced with the problem of differentiating between an injury caused by our treatment and a bad outcome caused by the illness. The increased frequency of compensation might drive costs up, but the lack of windfall jury awards and the removal of incentives for "defensive medicine" might drive costs down. If the current system is so bad, we might want to try something like a no-fault system, and see what happens...

"Myth No. 3: The malpractice system is necessary to punish and remove incompetent health care providers."

Some patients' groups oppose no-fault because they want to be able to punish negligent physicians. Some patients also oppose caps on damages because they (rightly) feel that negligent physicians should be held accountable.

If the physician lobby wants relief from the current malpractice system, they should stop carping about the trial lawyers and start offering some constructive alternatives for holding negligent physicians accountable. They might start with reversing their opposition to publicizing appropriate data from the national practitioner data bank (1, 2, 3). They might consider reversing their position on enterprise liability (1, 2) which would make institutions such as health plans or hospitals liable for the errors of the physicians they employ, supervise, and contract with. This exposure to liability would motivate these institutions to identify and remove incompetent doctors. They might support a more vigorous oversight by state licensing boards. The only unacceptable option is to continue to rely entirely on self-policing by the medical profession. This merely gives the trial lawyers more ammunition in their campaign for the status-quo.

"A few new caps on liability costs aren't going to solve the problem. It's time we begin a comprehensive reform of the medical justice system."

Perhaps caps on damages are a necessary first step, but they won't solve many of the problems that plague our current system. Caps won't necessarily change the frequency of claims, which is an independent reason for rising malpractice premiums. Even if they successfully reduce malpractice premiums, caps alone will do nothing to alter the random nature of malpractice lawsuits. Physicians will still have to contend with the unsettling reality that a lawsuit might strike like lightning at any time. Hence, caps will also do nothing to curb the habit of "defensive medicine," because the fear of random lawsuits will remain.

If physicians are serious about changing our irrational system of medical malpractice, they're going to have to think beyond just caps on damages. The chance for physicians to play a leadership role on this issue is still there, but an obsession with caps will ensure that this opportunity will pass them by.

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For some interesting comments by physicians on malpractice reform, you might start here (suing HMOs) and here (medical expert witnesses.)

Posted by Carey at November 14, 2004 10:32 PM
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