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October 26, 2009 - Any Malpractice Reforms Should Put Patients First

Whenever the issue of medical malpractice comes up, physicians agree that changes are necessary. Where we disagree is on how to fix the problem. So we all took note when President Obama acknowledged that medical malpractice reform must be considered. In fact, he proposed pilot projects to study how to improve patient safety and change the way we compensate injured patients.

Reforming medical liability has historically been a source of major contention. Many physicians argue that the system is expensive, promotes multimillion-dollar awards disproportionate to the injuries and encourages "defensive medicine." Lawyers say suing doctors is the only way patients harmed by medical errors can seek financial redress. They dismiss the notion that malpractice costs and defensive medicine contribute substantially to health care spending.

This argument overlooks the fact that the liability system often does injured patients a disservice. A 2006 study from The New England Journal of Medicine should give health care reformers something to think about.

Lengthy battles

Researchers found that the impact of frivolous lawsuits was limited. More concerning was that in one in six cases, patients injured from errors received no payment. Patients who did receive compensation waited an average of five years before their case was decided, with one-third of claims requiring six years or more to resolve. To make matters worse, 54 cents of every dollar that injured patients received were then used to pay legal and administrative fees. These costs do not justify this level of inefficiency.

Furthermore, medical malpractice cases do little to promote patient safety. Although medical errors account for close to 100,000 patient deaths annually, according to the Institute of Medicine, the majority are caused by failed systems or procedures -- not physician negligence. Doctors and hospitals ideally should learn from mistakes in order to improve patient care, but that's difficult to do when liability cases are resolved in an adversarial manner.

Problem with caps

Many physicians advocate caps on malpractice awards, but this does little to ensure that patients are compensated fairly or expeditiously, nor will it improve safety. In Texas, for instance, a $250,000 cap on non-economic damages has made it more difficult for injured patients to seek compensation because lawyers find most claims too unprofitable to pursue.

Perhaps we should look abroad for other ideas. The U.S. is one of the few countries that uses a jury to decide medical malpractice cases. Liability cases in Great Britain, Germany and most of Canada use judges who can decide cases more quickly and in a manner more reliable and consistent than a jury. These "health courts" would speed up payment of compensation for injured patients. Additionally, according to Philip Howard, chairman of the legal reform coalition Common Good, by using health courts, "information about each (malpractice) incident ... would be compiled and disseminated so that doctors and hospitals could learn from their errors."

Another consideration is a "no-fault" approach used in countries such as Sweden and New Zealand. Under such a system, legitimately injured patients are quickly compensated using payments based on the severity of injury without assigning blame to doctors.

Medical malpractice certainly needs a second look, but any reforms should put the patients -- and no one else -- first.

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