Random thoughts on malpractice

October 21, 2004

Thanks to the many commentors of this blog. Several issues recur, and I will try to explicate.

Caps on punitive damages

I have stated often that I favor caps on punitive damages for all tort cases. Specifically, I would like to see caps for medical malpractice. Caps will ameliorate but not solve our malpractice crisis.

Caps would not prevent paying for expenses which result from malpractice. A victim of malpractice writes:

The driving system I need, in order to get the doctors, is 60k, and needs to be replaced every few years. Oh yes, I’ve won some lottery.

The driving system, and all expenses require to modify your home should not be capped. These are directly related to your injury, and thus should be covered.

But I agree that caps are not the answer.

Developing a new system

Not being a policy wonk, lawyer or expert panel member, I can only theorize how an expert panel would work. The idea seems straightforward (but then I view the world through reasonably straightforward eyes). Expert panels (in each state) would review malpractice complaints. These complaints would (I believe) require less preparation than current malpractice cases. Lawyers would receive compensation related to the time spent to prepare the documents (I am certainly fuzzy on this point). Patients or family members could alert the expert panel to investigate a particular case.

I believe that such panels would provide a more objective evaluation of care, thus improving the likelihood of finding physician errors. They would also hopefully involve less “red tape” making the system more accessible to patients.

An ideal system would improve patient access to evaluating care while protecting physicians from frivolous lawsuits. Indeed some lawsuits are frivolous, while some justified suits are never developed. We want to increase both sensitivity and specificity for identifying malpractice.

Of course this system would involve major tort reform. The question though is who would a new system hurt. I believe that it would help patients and their families. I believe it would restore justice. Trial lawyers would have to look elsewhere for business.

Of course I am just echoing a well known proposal – Expert Medical Courts: An Idea Whose Time has Come

A recent editorial by Dr. Charles Lockwood, Chair of the Department of Obstetrics and Gynecology at the Yale University School of Medicine, endorses Common Good’s proposal to create special health courts and calls on doctors to “rally behind [the proposal] by joining and supporting Common Good.”

Lockwood lists six key benefits that a health court would produce, including “consistent judgments on standards of care by court appointed experts; accountability for negligent and reckless providers; and powerful incentives for quality improvement in medical systems.”

Lockwood’s endorsement was published in the September edition of Contemporary Ob/GYN, the leading publication in the ob/gyn field. Lockwood emphasizes the importance of bringing reliable law to the medical field:

In these special health courts, full-time, dedicated judges would rule on issues of medical liability, supplanting the unpredictable, inconsistent, random jury decisions that now result in wildly discordant rulings from case to case.

In July, U.S. Senate Majority Leader Bill Frist, who is also an M.D., called for the creation of special health courts. Lockwood writes:

Frist’s proposal could not come too soon. In July, Massachusetts became the 20th entry on the American Medical Association’s list of states affected by the professional liability insurance crisis. According to the Massachusetts Medical Society, in that state jury awards over $2 million have jumped fourfold in the past 5 years, and 64% of ob/gyns now report limiting the scope and/or nature of their practices because they fear litigation.

Lockwood gives a six-point list of the advantages of a special health court system:

1. Consistent judgments on standards of care by court-appointed experts. … [E]xperts would render opinions based on solid peer-reviewed evidence and guidelines published by medical societies.

2. Truth seeking rather than adversarial confusion. Data would be gathered by the court’s objective experts, not by plaintiff and defense attorneys.

3. Rational and dispassionate settlements, based on true economic loss. … Compensation would be uniform, fair and codified.

4. Accountability for negligent and reckless providers. The courts would work with state medical societies and specialty boards to ensure that their members uphold the highest standards of professionalism. The specialty boards would be given greater authority than existing state agencies for monitoring physician performance and responding to substandard practice.

5. Powerful incentives for quality improvement in medical systems. Freed from potentially catastrophic, capricious, and unpredictable jury verdicts, individual practitioners, health-care systems, and managed care plans could focus on transparency in error reporting to reduce mistakes and enforce standards of care.

6. Administrative efficiency and cost reductions. Our current litigation system returns 22 cents on the dollar to victims for economic losses!

Victims of malpractice deserve protection. I believe most if not all physicians believe that. We strongly disagree with the trial lawyers on the best road to justice.

Related Posts

1. Summarizing my thoughts on malpractice
2. Malpractice – my thoughts clarified
3. Random thoughts on finishing another month of ward attending
4. Some more thoughts on malpractice
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