Wednesday, May 04, 2005

Proposals for Malpractice Reform

Ted Frank at Point of Law writes a wonderful, unfortunately tongue in cheek, article extolling the virtues of a trial lawyer-run medical malpractice company. He carefully lays waste to the ATLA's talking points about medical malpractice reform; and he's an attorney! I wish this type of article could be distributed more widely.

Another take on this issue, once again from a non-physician, comes from the deputy editor of the Wall Street Journal's editorial page, Daniel Henninger, who endorses Common Good's proposal for the creation of health courts. I think he "gets it:"

Noting that special courts already exist to handle tax disputes and patents, Henninger said, "One benefit of health courts is they would create judges who understand the nature and complexity of medicine. Yes, bad things do happen in medicine. And when they do, the arguments ought to be handled by judges who know from experience the difference between an honest mistake and malpractice."

The unreliability of the current system has serious consequences, as Henninger detailed. "Everyone knows what malpractice is about," he said. "It's about doctors leaving states like Ohio, Pennsylvania and Maryland because their premiums are through the roof. It's about doctors practicing defensive medicine, ordering lots of tests, to avoid lawsuits."

Paul Barringer, general counsel for Common Good, laid out his case for health courts in the National Law Journal on May 2nd. Part of his argument has been heard before, but bears repeating:

Of claims brought forward, 80% involve situations where experts believe the doctor did nothing wrong. A poor medical outcome, rather than negligence on the doctor's part, is often the key to the size of the award. Nor does the current malpractice system foster quality improvement. Doctors and nurses, fearful of being sued, are reluctant to admit to mistakes. Patient safety experts generally agree that most medical errors result from breakdowns in health care delivery systems rather than from individual wrongdoing. But the current system assigns liability to individual doctors, inhibiting the open communication necessary to catch errors and make improvements.
There are legislative efforts afoot to at least get a health court system established on a trial basis. Much more information can be found here, here, and here. My personal feeling is that med-mal reform has to be put into the context of overall tort reform; we seem at times to be living in a system designed by and for the benefit of trial lawyers.

Hat tips to Dr. Tony and DB.