If health reformers want to emulate Canada and Europe, can we copy their malpractice systems too?

in Physician | 26 responses

Most health reformers and progressive policy experts want our health system to be more like Canada, a single payer system, or Europe, which include hybrid public-private systems.

What most fail the mention is that in both these instances, malpractice systems (via DB’s Medical Rants) from these countries compensate patients more fairly, and do not expose the physician to the lengthy and traumatizing litigation process that they do in America.

Consider this piece in Medical Economics, looking at malpractice systems from abroad:

Stunned by huge awards handed out by juries? In Canada, judges try the vast majority of malpractice cases.
Outraged by the contingency fees of plaintiffs’ attorneys that gobble up one-third or more of court-awarded damages? Germany bans them, while the United Kingdom limits a victorious plaintiff’s attorney to twice his customary fee.
Skeptical of dueling expert witnesses? German judges appoint their own neutral experts.
Sick and tired of litigation, period? In New Zealand, malpractice cases bypass the courthouse. They’re adjudicated through a no-fault system run by the government.

Each of these options are better than our current system, which pays 54 cents on the dollar towards administrative fees.

I do agree that malpractice caps are a non-starter, and unlikely to gain traction. But some of these other ideas, especially loser pays, should be considered.

So, here’s a piece of advice to health reformers. I think you will garner much more physician support and sympathy for a European or Canadian-style health care system if you also advocate importing their malpractice system as well.

Comments

Pingback: Web Media Daily – July 14, 2009
http://duncancross.net Duncan Cross
I think it’s an excellent idea. It’s also more or less the idea behind the National MEDIC Act (S.1784, 109th Congress) introduced by Sen. Clinton and cosponsored by Sen. Obama in 2005. That bill died in committee – most likely killed by the Republican leadership.
http://evimedgroup.blogspot.com Marya
There is really no way to effect the reform without addressing the malpractice system. In fact doing it in that way will avoid the discussion of the third rail, tort reform, and I believe that it is on the table in any single party discussion.
Matt
“compensate patients more fairly,”
Kevin, you didn’t give us any information to make that determination. How did you reach that conclusion?
The article you cite doesn’t really support any of your conclusions, so I’m surprised you cited it. Some quotes:
“And some proponents of trial-by-judge temper their support. “I’ve heard the ‘dumb jury’ argument, but our experience hasn’t proven that to be the case,” says FP John Gray, CEO of the CMPA in Canada. Likewise, John Hickey in the UK says court decisions didn’t tilt noticeably in favor of physicians after Ireland switched to nonjury civil trials several decades ago.”
“Even if taxpayers did pony up more money for court-appointed experts, their value shouldn’t be overestimated. “Even a supposedly neutral witness will have biases,” says Vidmar.”
“Tort reform pending in Congress would put contingency fees on a sliding scale to minimize the attorney’s cut, but if Canada’s experience is any indication, this measure may not amount to much. Canada’s provinces have gradually embraced contingency fees over the years, with the last holdout, Ontario, coming on board in 2002. “In our view, it’s made no difference,” says the CMPA’s John Gray. “We don’t see a lot of nonmeritorious claims being pursued regardless of how the attorneys are paid.”"
“Florida’s experience mirrors that of Canada, where the loser-pay rule is on the books. “We seldom attempt to collect costs from plaintiffs when we win,” says John Gray. “Frequently, the families who sue aren’t well off to begin with, and they’re attempting to care for someone who is severely injured.”"
“New Zealand’s situation doesn’t surprise health care economist Patricia Danzon, a professor at The Wharton School of the University of Pennsylvania. “I don’t think there’s an advantage in moving away from a fault-based system,” she says. “It’s hard to define a compensable injury if you eliminate the idea of error. You don’t want to pay for all bad outcomes, but where do you draw the line? The cost can go through the roof.”"
“Canadian doctors are largely insulated from malpractice sticker shock because provincial governments foot much or most of the bill, says John Gray. “The rate for an ob/gyn in Ontario is $75,000, but the government pays about $70,000 of that.” You’d think Canadian doctors would be more content than their US peers, but Gray reports that some ob/gyns in Ontario are leaving practice, while neurosurgeons no longer perform certain high-risk procedures—shades of the United States.”
It’s a great article, it’s just too bad you didn’t read it Kevin.
Matt
“Each of these options are better than our current system, which pays 54 cents on the dollar towards administrative fees.”
Any system is going to spend a lot on administrative fees, particularly all these taxpayer supported ones you back. Included in that cost is insurer overhead, which won’t change. The cost of these court appointed experts, which will now be borne by the taxpayer rather than the parties, and the cost of administering the trial, which won’t change. And the people presenting the evidence to whoever you decide to try the case will still have to be paid, because an injured patient likely won’t have the knowledge or maybe even physical capacity to present their own case. So where are the savings?
And, if we go to your preferred method, no-fault, that’s fine, but there are going to be a LOT more claims, and that has a cost too, since once the hurdle of fault is removed for making a claim, the number of claims will likely skyrocket. Think that won’t affect your premiums?
ray
For one thing malpractice paralyses doctors’ thinking. If there is some sort of caps, maybe the culture will shift to appropriate testing rather than over testing as reflex. It amazes me why follow up visits and phone follow ups are so under used.
Matt
” If there is some sort of caps, maybe the culture will shift to appropriate testing rather than over testing as reflex.”
We have had caps in some states for decades. How much effect has it had on “defensive medicine”?
gg
Take the lawyers out of it and it will be cheaper for doctors and patients will be better compensated. The saying is true. One lawyer in town is going to starve. Two lawyers in town are going to make a killing while they argue and suck out everyones money. Or something like that.
TrenchDoc
How many of you have actually been through a trial involving a claim that you are at fault?
Well until you have don’t tell me about what you think costs are? How do you put a price on 5 years of wear and tear on your life and the effect on your family. This argument applies to both plantiffs and defendants. Clearly NO ONE like the current system except for trial lawyers. We should scrap what we currently have and start with a way to fairly value and compensate damage .
Anon
“Take the lawyers out of it and it will be cheaper for doctors and patients will be better compensated.”
So doctors are ready to tell their insurers NOT to hire attorneys and just pay the patients directly, and to pay them more?
Matt
“We should scrap what we currently have and start with a way to fairly value and compensate damage .”
Perhaps. So what’s your suggestion that will get past not just the lawyers, but your insurer? Do you think they are ready to start paying more people (because very few incidents of malpractice actually result in a claim) and pay them sooner?
And if you want the cases to speed up, have your insurer pay claims faster. Or support a tax increase to hire more judges to ease caseloads. Problem solved.
Why would someone have to go through a trial to discuss costs, and compare them with other systems? Are you suggesting that the cost discussion can’t be had unless you’ve had a trial in every jurisdiction you want to compare? That’s like saying you can’t discuss the cost of driving two different types of cars unless you’ve owned both for a year.
TrenchDoc
You start with the assumptions that even in the best of medical care there is inherent errors built in because humans are not like pieces of machine metal that you know respond to physical laws. Start with a compensation board to review claims with the power to throw out false claims. The set the value of the compensation in terms od economic and pain and suffering. Severe medical errors are referred to the state medical boards for action. Hospital errors can be referred to the Joint Accredation Organization for Hospital for action and determination of compensation.
For the docs have them pay malpractice assessment fee based on the previous years claims pay out. All docs pay equally because that stimulates the docs to do a better job of policing themselves such as reporting problem physicians to the medical boards. You can still have the lawyers involved much like we do now in representing disability claims. They get paid their hourly rates but if the claim is found to be without merit they get nothing.
TrenchDoc
Matt
Doctor’s malpractice companies still pay to defend ANY claim filed against them even if the claim is dropped. My experience is that this usually takes 2 years and $100,000.00 to defend claims that never go to trial. So under the current system docs pay either way whether the planiffs win or lose.
Matt
Trench, there is no way it costs $100K for all the cases that don’t go to trial and if someone is throwing that figure out you need to ask for some detail.
As for your proposal tell me how it any cheaper or this group is going to process claims any quicker? You’re still going to need experts in each field, physicians will want the right to appeal just like try appeal medical review board findings now, and the taxpayer is now paying the cost for all these experts. Plus we are letting docs judge their own which hardly seems fair to any other profession. If a semi runs you over tonight do you think a panel of trucking co execs ought to decide fault?
And since I assume you plan to lower the bar to filing a claim you’ve got a bunch more claims. Claims lawyers screen now.
Oh and disability cases are taken on contingency and they are no fault claims effectively.
Susan H
Trench Doc….I fear engaging with Matt is like playing dodgeball with no balls.
Matt lobs diversionary accusations and demands answers, and when thoughtful cogent answers come, he lobs another off-topic shot.
But, he has no direct responses for questions about the substantial protections uniquely granted the legal profession from malpractice liability. And the first-priority, unsubordinated status accorded legal fees.
It is an effective tactic, keeping opponent on defensive. It would be interesting to see the legal profession experience that position for a change.
Matt
Susan I don’t respond to you because your posts are nonsensical. They’re based almost totally on mistaken assumptions.
Trench makes a good point about the length of cases. But in large part that is up to the insurer. The plaintiff has no interest in delaying the case. It does not help them in the least. Or their lawyer. If physicians want to reform that they cam do it with their insurers. They don’t need to establish another expensive bureaucracy.
TrenchDoc
Matt
Docs want these cases to go away quickly because every outstanding case creates a red flag for docs when they fill out their recredentialling forms. Docs have to do this every 2 years for every hospital and private healthcare plan they are affiliated with. Also any loans docs apply for are also impacted by these outstanding cases NO MATTER how frivilous the claim.
I can speak to the fact that some trial lawyers file a claim and do not push it to trial. One lawyer I know either gets a settlement or drops the case. I was an expert for the defense in that case so I can speak to that claim with accuracy.
The Insurance company should be physician owned as it is in Tennessee. This aligns the incentives for the docs and the insurance company. Mandatory yearly malpractice seminars are held for all docs insured by the company.
MedFusionBlog.org
Great post. The current malpractice environment only pads the pockets of trial lawyers who use the real or perceived damages to patients to extort money from others.
Most of my physician colleagues who are in private practice will not see trial lawyers or their employees as patients in their clinics. As an Emergency Physician I am forced by the government to see anyone who walks through my ER door, but if I had a choice I would not accept a trial lawyer as a patient and support my friends who choose this exemption.
My sister and I used to argue about the current malpractice climate in this country during her first year of law school. She defended the system while I argued against it. By the time she graduated, however, she was so appalled by the hypocrisy of her fellow lawyers that she went full-time into medical malpractice defense. I am very proud of her and feel somewhat vindicated by her change of heart.
Matt
“The current malpractice environment only pads the pockets of trial lawyers who use the real or perceived damages to patients to extort money from others.”
So how do you propose patients injured by malpractice (if you believe they exist) get compensated for their damages? Wait for you to write a check?
“Most of my physician colleagues who are in private practice will not see trial lawyers or their employees as patients in their clinics.”
Which is a good plan, because you’ll never need them. You’re indestructible, and there is literally no possibility that you will ever be injured by the negligence of another. Or anyone in your family. And if you were, insurance companies would RUSH to write you a check for your damages. Because that’s how they make money – paying claims.
Funny how doctors have no trouble hiring lawyers to sue health insurance companies, but find it abhorrent when anyone else dares consult one.
“By the time she graduated, ”
By the time she graduated she didn’t even know how to file a lawsuit, like every other law student doesn’t. She hadn’t even taken the bar exam. Nothing against your sister, but she learned literally nothing about practicing law from law school. You learn how to think like a lawyer, and you learn rules of procedure and such, but you don’t know jack about the practice of law.
It would be like basing your knowledge of medicine on the musings of a junior in college pursuing a biology degree.
Matt
By the way, if you were really trying to help your sis you would have told her not to go into a field of law where you get paid by insurers and have to deal with third party auditing companies and the like. She could have learned from the failed reimbursement model of physicians.
TrenchDoc
Matt and MedFusion
I try to approach lawyers with an evangelical attitude. I see them in my practice as patients and when given the opportunity I “witness” to them much like a pastor would do with a “sinner”.
The nature of a lawyer’s and a doctor’s education and training creates communication barriers that are reinforced by the arrogonance of both professions.
Susan H
These angry posts by the lawyers are contrary to the healing arts’ tenet of collaboration. Collaboration could work toward solutions for the common good, through sharing of good or bad experiences, and suggestions for alternate methodology.
Are lawyers posting on this site to defend a legal system which they passionately believe to be good for America and American healthcare? Are comments posted here by lawyers intended to engender solutions for America’s healthcare crisis?
Matt
I appreciate your information. It is always good to get a reminder of the other side. I believe the whole tort reform issue will be moot with regard to med mal once single payer gets here anyway. If I were a physician I would be far more focused on that. As a patient I certainly am
Matt
Susan not everyone thinks there’s a crisis, even allowing for how that term has been defined downward.
steve
how about this idea. since lawyers like arguing nonsensical facts, and are essentially playing the system for profit, maybe we should start to beat them at their own game. I would publicly and financially support a database of all malpractice lawyers. this would be freely accessible to all licensed medical practitioners, and give type of claim, verdict, and amount awarded in damages.
We could then make a choice as to IF we wanted to treat them or take them on as patients, and better, if we decided that we wanted o delve into this type of veterinary medicine (lawyer does not equal human) we could charge them appropriately for service.
Karl
Kevin, Mr. Obama (Harvard Law ’91) and his law buddies have never worked in a world where professionals have LEGAL PARASITES swimming around them. The oft-cited CBO study that LEGAL PARASITES cite is just an example of theory seeking reality.
Mr. Obama is in trouble because he changes his positions so often, he cannot be trusted.
He has no one to blame but himself.

Previous post: Why health reformers and politicians should listen to medical bloggers

Next post: Fixing malpractice is a vital part of health reform

If health reformers want to emulate Canada and Europe, can we copy their malpractice systems too?

Related Stories

More in Physician

Comments

Site

Channels

Subscribe

Related Stories

More in Physician

Comments

Site

Channels