My demanding audience, at it again.
I’ve always favored a Worker’s Comp type system for med-mal. Instead of paying malpractice insurance premiums, doctors either (1) pay into a shared fund or (2) buy med mal recovery insurance. Then, in the event there’s a medicaly related injury, the person makes a claim to a central claims administrator, which can be a panel or whatever, who adminsters the money, and allocates the payouts based on the extent of the injury, the amount of negligence involved, etc.
For me, and this is generally where I lose my father when we have these discussions, the place to start is injury. At it’s very core, with all other judgments aside, medical malpractice law is tort law. It starts because someone was hurt in some way. The question, for me, for society, for everyone, is then who bears the cost of that injury? Should it be the injured party? Should it be the doctor? Should it be the government/society? Or should it be some combination of the three?
There has to be balance between accepting that complications happen and often aren’t the fault of the doctor with the fact that medical error does exist, and there are injuries that are avoidable and are caused by the doctor’s negligence.
Getting back to the WC-type regime, then. If the claims administration determines that the injury was not avoidable, the complication beyond the reasonable expectation of the doctor, and the doctor’s actions perfectly in line with the standard of care, then the adminstrator could decide that the doctor should make no additional contribution to the injured party, but that the extent of the injury is serious enough to warrant a pay-out to the injured party from the central fund.
On the other hand, if the doctor is found to be negligent, and the injuries otherwise avoidable, the doctor can be made to pay some amount to the injured party, commensurate with the injuries and the doctor’s ability to pay.
Obviously, this is a very rough sketch of a possible system, and details could be worked out. But that’s the general concept. That’s the way I think is best to balance the injured party’s right to seek recompense, with the more likely scenario that the doctor did nothing wrong.