Fixing Medical Malpractice

My demanding audience, at it again.

So while I mentioned in my previous post that any substantive ideas for change would be the subject of another post, I still get snarky comments.  Anyway, this is that post.

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.

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15 responses to “Fixing Medical Malpractice

  1. I think most of the problem tends to revolve around the cost of defense more than the actual real suits. For this reason, and since most claims lack merit but are cheap to file, a bigger way of cutting down on such costs is to reduce the ability or desire of people to sue in the first place. Much of this can be accomplished by throwing out immediately cases which fall under normal standard of care/reasonable expectations of care; forcing legal costs in some cases onto the plaintiff; perhaps capping malpractice suits to reduce claims to those who feel they have a good enough case to try; etc. I don’t think that your suggestions – while good and worthwhile in general – will really cut down on the largest part of the problem which is the original filing of the lawsuits.

  2. I don’t think that your suggestions – while good and worthwhile in general – will really cut down on the largest part of the problem which is the original filing of the lawsuits

    Of course it does. There are no lawsuits filed. Anyone that would otherwise file a lawsuit files a claim to a Medical Claims Administrator, or whatever you want. There’s no need for a lawyer, so no legal fees. The claim form is filled out by the claimant and submitted, and then reviewed by the review board.

    You could modify the system to include Blie’s gatekeeper board, sort of like in employment discrimination cases (the EEOC has to approve the claim before you can file a lawsuit), and allow the most egregious problems to proceed to trial, but then you don’t eliminate the cost of medical malpractice insurance (which is a HUGE cost and inefficiency and part of the problem).

  3. There also has to be serious penalties imposed for non reporting.

  4. Sorry, I misunderstood that part, but… come on! That’s just the creation of a huge bureaucracy that won’t reduce costs at all. Who will pay for this board? Who controls it? What requires someone to use it instead of filing a suit?

    This costs just as much money, just in a different form. It might be more on the backs of taxpayers instead of doctors, but it’s still extra costs that shouldn’t exist – you’re not eliminating, just shifting.

  5. Noyam – something I don’t understand about your system.

    If the doctor does nothing wrong, but a patient is injured, the patient should be compensated? What for?

    Complications are inherent risks in treatment. If you’re afraid of the complications, don’t seek treatment. Individuals can determine for themselves whether the potential complications are worth it for the chance of being healed.

  6. Noyam, you said “There’s no need for a lawyer, so no legal fees.”

    Why is there no need for a lawyer? In your system, the doctor is potential liable for damages. He is still going to need a lawyer.

  7. I agree with Ezzie and “Blie”. This model shifts the burden, not eliminate it. The better idea is to use magistrates or other expert panels who can better screen cases, as Blie suggested. And if the magistrate or panel throws a case out, the plaintiff should be forced to pay the legal fees of the doctor.

  8. What requires someone to use it instead of filing a suit?

    The same rules that don’t allow an employee who is injured on the job to sue his boss in the Worker’s Comp scheme.

    If the doctor does nothing wrong, but a patient is injured, the patient should be compensated? What for?

    Because there is a cost to society when people are injured, and there’s a conscious decision made by society (me, in this instance) that part of the system is have society bear some of the cost of being injured in this way, and not just impose it entirely on the person.

    Complications are inherent risks in treatment. If you’re afraid of the complications, don’t seek treatment. Individuals can determine for themselves whether the potential complications are worth it for the chance of being healed.

    This seems like an extremely cold, harsh and unrealistic view of the world. People don’t always “seek” treatment. You pass out and are brought unconscious to the ER, and during the course of their treatment, you develop a clot that causes a stroke, which requires months of physical therapy to recover from. There’s no doctor to “blame,” but society can make an affirmative choice that you don’t have to bear this burden alone.

    I don’t think it has to be a binary choice: either the doctor made a mistake and he bears the entire cost, or the patient had bad luck and he bears the entire cost. I think there can be a spectrum based on the severity of the injury, the nature of the injury and the behavior of the doctor, that can determine the compensation.

  9. Sorry for 4 posts in a row. Take a look at this article (the link was auto-generated on this page):

    When Doctors Say, “We’re Sorry”

    You know how there’s a hearsay exception when the potentially liable party offers to pay medical expenses, or for similar public policy reasons? How about a hearsay exception for apologies? Maybe that would cut down on the number of lawsuits!

  10. This model shifts the burden, not eliminate it.

    Eliminating the burden is a chimera. It’s impossible. All the scheme that Blie proposed does is make access to courts more difficult, a choice that was specifically rejected early on in American jurisprudence. The rules of Civil Procedure are based on the balance of promoting easy access to court. This just adds a roadblock, and the added cost of being rejected that you throw in would simply have a chilling effect on cases, and would simply result in fewer suits brought, even those with merit, and not any more “justice.”

    This also doesn’t “eliminate the burden.” It shifts it back on the injured party. But there’s still a burden, there’s still an injury, and there’s still a cost. And there’s a cost to society as well, in terms of the lost productivity of this person, in whatever value he added to society.

  11. Noyam, why don’t we just have society pay for all hardships that befall anybody? Since when has society ever made such an “affirmative choice”?

  12. Noyam, why don’t we just have society pay for all hardships that befall anybody? Since when has society ever made such an “affirmative choice”?

    Are you kidding? Aside from the example of Worker’s Comp, which is essentially social insurance, what about Unemployment, Welfare, Medicaid, Food Stamps? No fault car insurance? EMTALA? You think society ignores the cost of hardships? All of these are examples of society making the affirmative choice that all people bear the cost and share the burden.

  13. Last I checked, we don’t have a nationalized “personal injury insurance” system in this country, nor should we.

    The other systems you refer to are all for those (a) in extreme distress, and/or (b) their wellbeing or lack thereof impacts society at large.

    We don’t even have a nationalized health care insurance system — so if you get sick, you’re on your own. But once you get to the hospital, hope for a complication so that everything is taken care of.

  14. General R. Blie

    A few thoughts:

    1. My proposal does not limit access to the courts. This gatekeeping body can be set up as a legitimate part of the judiciary. We have special “courts” for a number of things – family law, bankruptcy – each of which has its own rules and procedure. (Patent court even has the concept of an “expert” resolving patent disputes.) Essentially, we set up a specific “procedure” for medical claims. If the system is set up correctly, no one with a claim that has merit will be denied his day in court. (This is why I am more ambivalent about imposing the costs on the plaintiff in a loss.)

    2a. I don’t like the comparison to Worker’s Comp. The worker’s comp system is social insurance. It was developed to protect the injured party, not the employer. (Under normal tort law, ideas of assumption of risk and standards of negligence made it highly unlikely for an employee to win a case against his employer.) Here we have the opposite. We are limiting the defendant’s liability. On public policy grounds that seems difficult.

    2b. Worker’s comp is a statutory strict liability system. It works well, because most people are working for one employer at a time. We don’t ask questions as to why his was injured, they just pay based on the injury. Show up without your arm, you get paid as long as you show you left it at work.

    Medicine is different. If you lose an arm because the doctor says you need to amputate to stop the spread of cancer, what happens? You were injured, but there was no malpractice. Noyam – would this person be paid? What if the arm was amputated because the doctor wrote “appendectomy” a little sloppy?

    Here is the problem – If you say Mr. Cancer and Mr. Appendectomy both get paid, the system is simple to administer, but we have true social insurance. Why should we make a distinction for medicine. Create a government fund that simply pays people for their arms? If you say only Appendectomy gets paid, then who makes the distinction? We need someone to decide still what is a legitimate claim. That involves lawyer’s, etc… (Essentially, we have created another (more hidden) system of simply putting a cap on damages. We still need to go through the adjudicative process of determining the injury, the payout is simply based on a cap. Furthemore, depending on who decides this, we have a worse case of denying access to court’s than my suggestion.)

    3. I agree that we cannot eliminate the burden. My proposals (as many others) are correctly focused on limiting or eliminating the ancillary costs of doing business and litigating medical claims. This is the primary area we can create savings. The question is – will these savings be enough to avoid more drastic and direct measures – limiting awards, redefining legitimate claims, etc…

  15. Blie – 2a is a fair point, and I suppose 2b is what Ezzie was getting at, and is fair as well.

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