A version of this op-ed was published on October 26th, 2009 in the USA Today.
President Obama has acknowledged that changes in the medical malpractice system must be considered with other health reforms, and recently ordered that pilot projects to improve the way we compensate injured patients be implemented.
Reforming medical liability has historically been a source of major contention. Physicians argue that the system is expensive, promotes multi-million dollar awards disproportionate to the injuries suffered, and encourages “defensive medicine” – the practice of ordering tests to avoid being sued.
Lawyers, on the other hand, say that suing doctors provides the only way for patients harmed by medical errors to seek financial redress, and dismiss the notion that malpractice costs and defensive medicine contribute substantially to health care spending.
But what’s overlooked in this argument is that the current liability system often does injured patients a disservice. And that’s the most important reason why medical malpractice reform is needed.
A study from The New England Journal of Medicine provides stark insight. Researchers found that nearly one in six cases involving patients injured from medical errors received no payment. For patients who did receive compensation, they waited an average of five years before their case was decided, with one-third of claims requiring six years or more to resolve. These are long waits for patients and their families, who are forced to endure the uncertainty of whether they will be compensated or not.
And with 54 cents of every dollar injured patients receive used to pay legal and administrative fees, the overhead costs clearly do not justify this level of inefficiency.
Furthermore, medical malpractice does little to promote patient safety. Although it’s been cited that medical errors account for close to 100,000 patient deaths annually, 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, often acrimonious, manner.
Indeed, in 2006, then Senator Barack Obama, alongside Hillary Rodham Clinton, wrote that the current system “does not promote open communication to improve patient safety,” and, “jeopardizes patient safety by creating an intimidating liability environment.”
There are many who advocate caps on malpractice awards as a solution, but this does little to fairly compensate patients more expediently, nor will it make the necessary improvements to patient 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 United States is one of the few countries in the world that uses a jury to decide instances of medical malpractice. Liability cases in the United Kingdom, Germany, and most of Canada use specially trained judges instead, who can not only decide cases more quickly, but also in a manner more reliable and consistent than a jury. These “health courts” will speed up the time it takes for injured patients to receive compensation. Additionally, according to Philip Howard, the chairman of the legal reform coalition Common Good, by implementing 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 to deciding malpractice claims, used in countries like 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. In fact, physicians in Sweden often work together with patients filling out the necessary forms, making them allies rather than adversaries. Such an initiative can also sharply reduce legal costs, with the money compensating more patients instead, while sparing physicians the ordeal of a malpractice trial.
Despite the disagreements surrounding the health reform debate, most feel that our health care system cannot continue to function under the status quo. If we care at all about the plight of injured patients, neither can our medical malpractice system.