A psychologist pleas for no-fault malpractice

Beyond the Blame: A No-Fault Approach to Malpractice

The truth, of course, is more complex. Most physicians, even those whose skills are excellent, make terrible mistakes at some point in their careers.

Most doctors are genuinely committed to their work and carry their mistakes with them, secretly, for the rest of their lives. Unfortunately, a vast majority do not tell their patients when they have made mistakes that harmed them.

It is not surprising that so many doctors who are successful and usually ethical will cover up their mistakes. And it is not surprising that many doctors, as well as patients, find the current system of accountability unworkable, especially in medical malpractice cases.

Fear of malpractice is rampant. Research studying physicians’ responses to being named in malpractice suits has revealed that the experience is traumatizing for most and that 20 percent of doctors who are defendants describe the experience as the most traumatizing of their lives.

Part of the trauma is financial; doctors are personally responsible for damages beyond the amount that malpractice insurance will pay.

The trauma is also psychological, as most physicians derive much of their self-definition from their knowledge that they are good doctors. In suits, it is to the plaintiff’s advantage to characterize the doctor as uncaring, negligent and unskilled. Physicians who have been trained to expect perfection from themselves usually find this battering.

This may explain why so many mistakes go unreported. In 1999, Dr. David Studdert, a Harvard researcher, published a paper in which doctors and nurses reviewed 14,700 medical charts from Utah and Colorado for evidence of negligent care.

Then Dr. Studdert and his colleagues tracked how often bad medical care resulted in malpractice suits. “Of the patients who suffered negligent injury in our study sample, 97 percent did not sue,” they wrote.

The author goes on to suggest a solution.

A better plan would call for motivating physicians to report their own mistakes by offering them no-fault judgments in exchange for their disclosures. This will work as a “carrot” only if there is also a “stick” waiting for those doctors who chose to cover up their errors.

In such a system, instead of physicians’ paying for malpractice insurance, the doctors and patients would pay into local injured-patient compensation funds. In this way, the burden of reimbursing injured patients would be shared, and everyone would enjoy the benefits of better care resulting from changes in the way medicine is practiced.

Physicians making serious mistakes would voluntarily report them to local commissions.

The commissions, which would consist of physicians and patients, would strive to compensate the injured patients according to guidelines established to ensure that reimbursements were uniform.

In exchange for disclosing mistakes, physicians would be granted no-fault judgments and avoid liability. If the commission agrees with the physician that harm has occurred, the patient will be compensated according to guidelines designed to ensure uniform compensation.

The compensation would be more modest than the occasional enormous judgments in the courts today, but many more patients would be compensated, because the reporting onus would be on the doctor (who is in a better position to perceive the mistake), rather than the patient.

Very interesting ideas are presented here. I am skeptical that they would work, and even more skeptical that the trial lawyers would allow such a system (which would apparently take them out of the financial loop). But I do recommend that we all consider this proposal, and perhaps even debate the ideas.