Is It Time for Malpractice Reform?

Year after year, Republicans try to pass legislation that would limit medical malpractice awards. Fix the tort system, they argue, and we fix rising health-care costs. And year after year, Democrats resist placing arbitrary caps on awards to people who may have suffered from an egregious medical error. The fight plays out like a predictable old Western -- good guys versus bad guys. Depending on your politics, the villain is either the greedy doctor or the greedy trial lawyer.

Health reform invites a fresh look at malpractice. The Republican tort-reform agenda hasn't magically fixed what ails American health care in states that have tried it. But progressives can test new models of medical malpractice reform because -- done right -- they may lead to a more consistent, more timely, and more equitable approach to compensating people who have been harmed. As Ezekiel Emanuel, a bioethicist and White House adviser on health policy, writes in his book Healthcare, Guaranteed:

There's little question that the system is broken ... Numerous studies have shown that the majority of patients who suffer a medical error are not compensated, while a select few win outsized awards. And on average, patients must wait nearly five years to resolve claims and receive payments from a malpractice case -- six if the case is related to the delivery of a baby.

The experiences of individual patients and families in the legal system can be wildly inconsistent, creating what the Republicans with some justification call "jackpot justice." Meanwhile, doctors complain of malpractice premiums that vary enormously depending on the state and the medical specialty, from around $10,000 to $100,000 or higher. Beyond addressing these problems, new methods may also encourage a more vigorous "culture of safety" in a country where some 200,000 people die each year from medical errors, hospital-acquired infections, and avoidable complications -- many of these safety challenges are systemic, not the fault of individual sloppy doctors.

Health-care reform isn't just about covering more Americans and controlling costs. It's also about quality. Repairing health care requires "delivery-system reform" -- moving away from inefficient and inconsistent care and toward more coordinated, value-driven medicine. But it's hard to get doctors enthused about adopting a "less is more" approach if they fear lawsuits from patients who think less is simply less and believe they have an inalienable right to more and more. More CT scans. More back surgeries. Even more colonoscopies. Overtreatment has many causes -- the idiosyncrasies of a physician's training, local practice patterns, the doctor's bottom line. But many experts believe that limiting "defensive" medicine, which is notoriously hard to quantify, would at least remove one barrier to fixing the broken system. Economists may believe that "defensive medicine" is less of a problem than doctors do. But it's the doctors who have to accept the new care models -- and get their patients to follow.

"The conversation has shifted, and the goal has shifted," says Dr. James Rohack, president of the American Medical Association (AMA). "We'll try to make health care more affordable. But if you don't give us protection for not ordering that test, you won't be able to have a health system that's affordable."

Malpractice reform is also good politics. Polls show the public remains convinced that malpractice is a big problem. Addressing malpractice also helps keep doctors on board, not just through the next difficult month or two of getting health reform enacted but the next few challenging years of getting it implemented and fine-tuned. The AMA has gotten deserved attention for abandoning generations of "socialist medicine" rhetoric and endorsing the House health-reform legislation. Less attention has been paid to its stance on malpractice. Of course, it would still take those Republican caps if it could get them. But Rohack suggests the AMA realizes the time has come to welcome alternatives.

So, what are the potential solutions? From a progressive perspective, malpractice reform should test various approaches at the state level, mixing and matching when appropriate. Pilot programs should be voluntary, avoiding any question about an injured party's constitutional right to a traditional trial. Innovations include "health courts," "disclose and apologize" models, and "certificates of merit" -- some already being tried and achieving success at the state level.

"Health courts" remains a catchall phrase; the AMA and lawyers' organizations certainly don't agree on what would constitute an acceptable model. But some bipartisan or nonpartisan groups and foundations are pushing the idea. Michelle Mello, a professor of law and public health at the Harvard School of Public Health, envisions health courts that could create a more consistent and evidence-based system, built around judges and neutral witnesses with medical expertise. Rather than prove negligence, injured parties would have to establish that the injury would have been avoidable had best practices been followed -- a "more generous standard," according to Mello. "The goal is to shift from judgment of culpability to compensation for patients," she said. Health courts may also be more accessible than the current tort system to people who are injured; right now, if they have a legitimate claim but not necessarily one that will lead to a huge payout, the injured party may have trouble finding a lawyer to take the case on contingency. Health courts have other advantages, too. Information gathered by the tribunals could then be mined to improve care overall.

Health courts do have their critics. DePaul University College of Law professor Stephan Landsman, who has helped the American Bar Association articulate its medical malpractice concerns, notes that medicine is already loaded with unsolved safety challenges. "My goodness, you want less liability?" he asks. He also fears that health courts would replicate some of the worst aspects of the state-run workers' compensation systems, which usually prevent an injured worker from suing the employer for the injury. Landsman thinks worker-comp boards fail to protect injured workers. "There's incompetence, inadequacy, very little improvement of care of those who are injured, or compensation," he says. Landsman doubts health courts would do much better. His preferred solution: Keep the current legal system largely intact, while enhancing state and federal patient-safety organizations to track and analyze errors and near misses.

But health courts aren't the only option. The House backed an "early offer" program -- currently used in places like the University of Michigan medical system -- where hospitals and doctors are urged to admit, apologize, and offer compensation. Patients can still sue, but fewer do. Barack Obama and Hillary Clinton jointly pushed a similar program as senators in 2006, and the Department of Health and Human Services recently began a grant program for state pilot programs.

Certificates of merit would allow a panel of experts to weed out the cases that shouldn't clog up the courts or cast shadows on doctors. A number of states already have such systems in place. Some studies have found they have been helpful, although it's hard to tease out their effect if they are part of a package of malpractice changes.

The White House and some congressional Democrats have signaled a willingness to implement some of these ideas as part of broader reform. Right now, the House bill includes legislation on the "disclose and apologize" model and certificates of merit; the Senate bill does not, but Finance Chair Max Baucus has sponsored separate health court legislation in the past. Whatever happens, Congress should not maintain the malpractice status quo -- it lets systemic flaws fester, while paradoxically encouraging us to conflate bad outcomes with bad medicine. Not everyone who dies or gets sicker or has a complication is a victim of an "error." And Democrats and patient-safety advocacy groups are correct that bad doctors should face the threat of legal action. But good doctors in bad systems should have tools, incentives, and protection to make care better for us all.

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