Global look at tort struggles offers glimpse of reform options (membership required)

Physicians around the world say the medical liability system is faltering in a number of countries, hobbled by high premiums in some places, hindered by ineffective approaches in others.

Medical leaders, attorneys and others traveled from as far as Australia, Kenya and South Africa to Canada last month to discuss the medical liability climate. They met in Ottawa for the Physician Insurers Assn. of America’s International Section Conference to get a taste of what’s happening in medical liability around the globe.

Many attendees said that while their countries may be struggling, they aren’t as bad off as the United States. Experts said they are well aware of the liability crisis and rising premiums in the United States and noted that they are glad their nations are not experiencing a similar fate.

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The situation in Canada has not reached the crisis level of the United States, but physicians are still concerned about the rising costs of liability protection and awards, according to Albert Julius Schumacher, MD, past president of the Canadian Medical Assn. Dr. Schumacher said the problem may be compounded by a physician shortage.

Not enough physicians are being trained to replace those who are retiring. The shortage leads to long waiting times, and doctors could be targeted for legal action if patients can’t get treated in a timely manner, he said. Meanwhile, some doctors are avoiding high-risk procedures.

“There’s increasing evidence of practicing defensive medicine,” Dr. Schumacher said.

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Mediator and former judge George Adams of Canada said growing research shows that ineffective communication is the largest factor in producing patient litigation following a medical error.

He said apologizing and being contrite after an error can have a positive impact on resolving conflicts. He cited a program, started in 1995 at what was then Rush-Presbyterian-St. Luke’s Medical Center in Chicago, that provides for voluntary mediation of all malpractice claims and a limited apology. The hospital reported that nonbinding mediation with an apology has assisted in the settlement process, he said.

“Focusing more on effective communication is a low-cost way to improve the tort system,” Adams said.

Professor Alice Brown, PhD, of Scotland, said effective complaint handling is another option. As the first Scottish Public Services ombudsman, she gets patient complaints that haven’t been resolved with the physician or hospital. An effective response can stop a patient from seeking litigation, she said. “The ombudsman is seen as an alternative to the courts.”

I wish the entire article was available to all readers. As I read the article, we need a better system than we currently have. The problems of designing an acceptable system involve our country’s litigous culture. Our legislators (with the majority being lawyers) generally refrain from limiting the right to sue. Some countries require a higher standard prior to legal action – e.g. the Scandavian system:

The key criterion for compensation is that a medical-related injury must have been avoidable.

But the article does not say how they determine avoidability. I find the article interesting but unlikely to solve our current crisis.

Related posts:

1. JAMA on the effect of malpractice
2. Malpractice courts rather than tort reform
3. Not just malpractice
4. Malpractice reform?
5. More malpractice woes

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