November 23, 2004

Medical-legal symposium

Today I attended a symposium on medical-legal reform at the Medical Center here at Michigan. The quality of the speakers was uniformly high, and the presentations were generally to-the-point and useful. Here are a few choice bits from today's event:

  1. Troyen Brennan presented data that suggest that the current malpractice crisis (i.e. the skyrocketing medical malpractice insurance premiums that are causing doctors to quit their practice or restrict the kinds of patients they see) has been driven primarily by an increase in the size of claims, and not by an increased frequency of claims.
  2. Brennan reminded us that there are many more patients who have been injured by medical treatment than there are patients who sue for malpractice, and he suggested that these patients constitute a reservoir of potential suits which might be tapped by an increasing public awareness of medical errors. He argued that proposals to reform our current negligence-based system by nibbling around the edges (damage caps, restrictions on expert witnesses, etc.) might not "solve" the malpractice crisis if more injured patients choose to sue.
  3. Instead of incremental reform, Brennan suggested that we change the system more fundamentally, perhaps by moving to a no-fault system. He argued that something like no-fault would do a better job of compensating patients and would make it more likely that patient safety would be addressed at a systems level. (More on no-fault here.)
  4. John Nelson, the president of the AMA, emphasized that capping noneconomic damages should be just a stopgap measure. He argued that the entire negligence-based system is destructive and should be thrown out.
  5. Rick Boothman, assistant general counsel at the U of M, pointed out that the problem with our current malpractice system is not that "it's bad," period, but rather that we depend on it to do far more than it really should. The tort system, said Boothman, works well in cases where there's an intractable disagreement and both parties demand a hearing. Many medical malpractice claims, however, are filed because other avenues of communication have broken down.
  6. Boothman talked a bit about the University of Michigan's much-heralded proactive approach to malpractice claims. Aided by a Michigan state law requiring that plaintiffs provide 6 months advance notice of their intent to file a claim, the U of M has been able to contact these unhappy patients and attempt to find out what's gone wrong. In cases where a mistake was made, the University will apologize and try to compensate the patient fairly. In many of these cases, the patient decides not to file a claim. The University will aggressively defend suits where it is not at fault, however. Boothman emphasized that although the press likes to focus on apologies, the key to Michigan's success has been honesty.
One thing that all of the speakers seemed to agree on was the need to define more clearly what we mean by "medical error," "adverse event," "near-miss," "medical injury," and so on. Until we can count the occurrence of these things more reliably, and track the effects of various reforms on the rates of these various things, it's hard to make an airtight case for any particular reform measure.

One thing that I would have liked to have been discussed that wasn't is the role of health plans. In a fascinating throwaway comment, Troyen Brennan pointed out that in California, where damage awards are capped under that state's MICRA reform law, malpractice insurance premiums are much lower than in other states. However, in California a huge number of patients see doctors employed by Kaiser Permanente, an HMO that assumes the malpractice liability of its physicians. Brennan hinted that this large-scale example of "enterprise liability" might itself be one significant reason for the lower premiums in California, and that MICRA might not be wholly responsible for controlling the rise in malpractice premiums.

Should enterprise liability be encouraged? Are health plans an appropriate enterprise to bear liability for physician malpractice? Are these questions moot unless ERISA is reformed?

More later, I'm sure...

Posted by Carey at November 23, 2004 11:43 PM