A medical malpractice system that reduces errors and improves quality

A medical malpractice system that reduces errors and improves qualityThe Affordable Care Act does very little to reform the medical malpractice system.

It only allocates $50 million to various pilot projects around the country.

A recent piece in the New England Journal of Medicine provides more detail.  It appears that, instead of capping non-economic damages, many of the projects have a quality improvement and patient safety focus:

The AHRQ funded seven demonstration projects in the first round. Four of these projects, in Illinois, New York, Texas, and Washington State, are testing expansions of the disclosure-and-offer approach championed by the University of Michigan Health System (UMHS). In the UMHS model, a liability insurer and its insured institutions proactively disclose unanticipated adverse outcomes to patients, conduct an expedited investigation, provide a full explanation, offer an apology, make a rapid offer of compensation in appropriate cases, and pursue clinical-process improvements to prevent recurrence of the event.

It’s a start. The current medical malpractice system is, by nature, adversarial, and provides little incentive for doctors and hospitals to disclose errors, apologize, and improve quality. Injured patients get a raw deal as well. According to the piece, “only 2 to 3% of patients injured by negligence file claims, only about half of claimants recover money, and litigation is resolved discordantly with the merit of the claim (i.e., money is awarded in nonmeritorious cases or no money is awarded in meritorious cases) about a quarter of the time.”

My preferred solution, a no-fault approach used in countries like Sweden and New Zealand, however, doesn’t get any funding:

None [of the demonstration projects] pursue a no-fault approach to compensation, in which an administrative agency or “health court,” rather than a judicial court, evaluates claims without reference to whether negligence occurred. Experience with such administrative models in other countries suggests that they may be more acceptable to physicians, compensate a larger percentage of injured patients, generate lower overhead costs, and provide more valuable information about patient-safety lapses than tort systems.

And that’s a shame. In Sweden, such an approach puts doctors and injured patients on the same side, working together to speed up the compensation process. Taking away the adversarial nature of how medical malpractice cases are decided will go a long way to reduce errors, improve quality, and compensate more legitimately injured patients.

Kevin Pho is an internal medicine physician and on the Board of Contributors at USA Today.  He is founder and editor of KevinMD.com, also on FacebookTwitter, and LinkedIn.

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  • Matt

    If you’re an insurer, who pays the claims, why in the world do you want that 2-3% stat to increase? The countries you cite have universal healthcare so the ultimate payor is the same.

    Kevin, unless you are prepared to adopt universal healthcare without private malpractice carriers, your wishes are pipe dreams.

    Not to mention US physicians are unlikely to want to respond to more claims.

  • http://natickpediatrics.net Rob Lindeman

    Amen brother. Too bad Sweden is identified in the medical mind as the locus classicus of socialized medicine, or the idea might get more support from our colleagues. Don’t count on the several state bars jumping on board, though. And as most legislators are attorneys, it’s a non-starter.

    That’s a shame.

    • Matt

      Most legislators are attorneys? Where? And what makes you think they’re plaintiff’s attorneys? Having a law degree and practicing law and even more practicing law on behalf of injured individuals are very different things and doesn’t necessarily create a unanimity of political thought.

      Really, though, you left out the most important party – the one paying the damages. The insurer. Think they’re for it?

  • doc99

    Kevin, we can’t have a New Zealand system here – where’s the opportunity for the Trial Lawyers to “Wet Their Beaks?”

    • Matt

      Are doctors clamoring for single payer? I hadn’t seen any of them all that eager to take a big cut in pay that likely goes with that – are you doc99?

      A lawyer who can handle a malpractice claim well doesn’t lack for opportunities to “wet his beak”. If you can handle that kind of difficult case, you’ve got all the work you want – on both sides.

  • Matt


    How do you partially fund or experiment with a no-fault system? The countries you refer to are single payer for all medical expenses. I’m not sure how you REQUIRE insurers (who pay the damages in this system), who are used to paying only on 1-1.5% of potential claims, to now pay all claims regardless of fault. And only in certain places where the pilot programs would be enacted. You’d essentially be rewriting the contracts with their insureds by government fiat.

    It seems you’re lamenting something that is going to require a more massive change than you’ve previously advocated.

  • http://www.epmonthly.com/whitecoat WhiteCoat

    Unfortunately, Kevin, even the best system will never be implemented until the National Practitioner Data Bank is done away with.
    When a physician’s license, hospital privileges, and malpractice insurance all depend upon what is contained in the Data Bank, and when every malpractice payout is reported to the Data Bank, there will never be an alignment of physician and patient interests.

  • Rob S

    With lawyers swelling the ranks of Congress and the Senate don’t hold your breath for any meaningful malpractice reform.

  • http://onhealthtech.blogspot.com/ Margalit Gur-Arie

    Any opinions on the Kaiser mandatory binding arbitration model?
    Do doctors like it? Patients? Is it reasonably fair? And does it reduce costs?

  • soloFP

    I have talked to docs from Canada. Most malpractice suits are buried for many years. If there is any payout, it is done by the government with the socialized medicine.
    Since many patients are covered by Federal jobs with insurance, Medicare, Tricare, or Medicaid, the patients the vistis technically are covered by the US and/or state governments. Receiving money from the government means that at least half the visits are socialized in the US. Why not make a rule that any government-covered patient who sues will get payment from the government and not the doctor? This is the case if a Federal clinic is sued by any patient, where the Federal clinic has an impartial judge with any losses paid by the government.

  • http://www.ehrrx.com Mark


    I applaud your suggestion to investigate other approaches. In the US everyone has been brainwashed into believing that the current system is all there is and worse, can be. Unfortunately we live in a litigious society, everyone wants to be a victim and to be compensated. Statistics show that a high percentage people collecting on malpractice claims, didn’t actually have a legitimate claim, while a high percentage of those who get nothing, had valid claims, as determined through research after the fact.
    Are some physicians better than others, they certainly are, but do physicians intentionally cause undesirable patient outcomes, I don’t believe so. Maybe that is a good place to start?

    • Matt

      ” Unfortunately we live in a litigious society, everyone wants to be a victim and to be compensated.”

      Given that tort filings have declined, and as Kevin noted, only 2-3% of the victims of malpractice make a claim, it would seem to be that everyone does NOT want to be the victim.

  • http://www.BocaConciergeDoc.com Steven Reznick MD

    Very complicated situation in a society that likes to sue and never takes responsibility for its actions. Medmal is an industry. Trial attorneys, nurses moonlighting reviewing cases for trial attorneys, investigators, mediation offices are just the beginning of a several billion dollar industry. It is generally expensive, tedious, inefficient , theatrical and rarely fair. Healthcare reform should have included medical malpractice tort reform designed to find the root cause of the adverse outcome, compensate the injured party if they are deserving for their losses in a manner the society and system can afford. , educate, rehabilitate or eliminate the health care providers involved in the incident based on the investigation . NTSB type accident investigations with workmens comp type awards would have been a great starting place whether we have a single payor system or no government involvement in health care.

  • http://www.shammeddoc.blogspot.com Shammed Doc

    Great comments and I will just add my two pennies. Despite the general pessimism in the responses, the only hope is to actually be hopeful. We don’t have to duplicate the entire social healthcare system of Sweden in order to adopt elements of the no-fault system. The issue of the National Practitioner Data Bank is important. It is a defaming system that amplifies bad reputation, even if the only evidecne against a physician is the decision resulting from a corrupt process that has no constitutional due process in it. The no-fault system, if adopted, has to specifically be immune from NPDB reporting. We can’t have it bothe way. Either you hold the stick and enforce punishment, or you promote a healthy constructive environment for better healthcare. Can’t have both. And the NPDB is an instrument of punishment disguised under the righteous banner of protecting patients. A no-fault system should be the goal, and all the brilliant brains should try to work in that direction and resolve conflicts and barriers till it becomes a reality, hopefully in my lifetime. Patients deserve it and we owe it to them to work on making it a reality.

  • http://www.ServantLawyership.com Kathleen Clark

    Yes, Kevin, medical malpractice litigation is, of course, adversarial. If error/mistake is communicated quickly to patients/families, with ongoing discussion about systemic changes/improvements in patient safety and compensation, as appropriate, there is no need for an adversarial process. Study after study shows that patients/families file lawsuits, primarily, to find out what happened. Poor communication is their primary complaint.
    Disclosure never seems to be part of the conversation about tort reform/medical courts/no fault/damage caps. Patients sue because noone will talk to them. Isn’t disclosure a much more reasonable and fair solution to the problem than health courts, which, like litigation, don’t give a voice to the patient (or the physician)?
    Also, someone comments about the NPDB, that all settlements must be reported to them. Actually, if there is no WRITTEN claim, any settlement/verdict does NOT have to be reported to them. This is another reason physicians should take part in disclosure: not only because it is fair, appropriate, and in the best interests of patients’ (and physicians) health, but because NO reporting is involved if disclosure takes place quickly after injury (no written clam is involved) and compensation is agreed to.
    Further, the AMA instructs physicians that when “a patient suffers significant medical complications that may have resulted from a physicians mistake or judgement,…the physician is ethically required to inform the patent of all necessary facts to ensure understanding of what has occurred.” Further, the AMA states “concern regarding the legal liability which might result regarding truthful dsclosure sould not affect the physician’s honesty wth the patient.”
    I have tried to have this conversation with physicians here and in many other online venues but get no response when I mention disclosure and making it part of the conversation. One well-known physician wrote back to me, ignoring the disclosure issues entirely, talking, instead, about “jackpot justice”. Very sad, because disclosure respects and protects physicians, as well as patients.
    Physicians don’t even need lawyers to do this, although they can disclose, compensate and improve health care with counsel from attorneys in a collaborative practice, which is nonadversarial. Physicians, commonly referred to as the “second victim” in medical error situations, can expeditiously, with support, maintain (or reestablish) relationships with patients, speak for themselves,improve practices and move quickly through resolution.

    • http://www.BocaConciergeDoc.com Steven Reznick MD

      When you have an adverse or unexpected outcome in patient care the first thing your malpractice insurer requires is that you notify them. Once you notify them the first thing they tell you is to talk to no one.
      If you do not follow the rules they do not necessarily have to pay to mount a defense. Until full and opne discussion and disclosure is an accepted part of the treatment of an unexpected or adverse result than it will not be done. It is certainly not a position that independent docs can institute on their own.

      • http://www.ServantLawyership.com Kathleen Clark

        Is that what your insurer requires? Is that the language in your policy? If so, I wonder if a group of physicians you practice with or know in your community might consider a conversation with your insurance carrier about what you, the physicians, are ethically required to do, according to your own consciences and the AMA.
        Physicians, as a group, have tremendous power in numbers and by virtue of your role in society. Speak at the annual meeting of the carrier; write to the board of directors of the carrier, put a statement on the record with the medical board (I did that in Califonia: rules are they accept public comment, so I read my statement into the record), write an article for the newspaper or a medical journal. As long as large numbers of physicians allow this to go on, it will keep going on. Instead of fighting for tort reform, damage caps, etc., work with your insurer to change policies to support fair, equitable, nonadversarial practices, including early disclosure, that support PHYSICIANS and patients.
        Clearly, the type of policy languge you mention interferes with the patient-physician relationship, violates public policy, and should not be accepted in the medical community.
        I’m sure you are aware that physicians who are sued are more likely to be sued a second time in the first year to eighteen months after the first suit, very likely due to their distraction, fear, and worry. Also, the statistics on sleepless nights, inability to work effectively, and more while physicians wait five years or more for a case that is totally out of your contol to be resolved are very telling–and very high.

        • http://www.shammeddoc.blogspot.com Shammed Doc

          Disclosing errors is an integral part of the no-fault system, but not the tort system, including tort reforms. When you disclose an error, you also would like to offer something in addition to the sincere apology. That something is a system that allows certain bad outcomes to be compensated outside the judicial system, which is, again, an integral part of the no-fault system. The ethical stance that Kathleen advocates needs a healthy environment to allow it happen regularly, not just by a few brave docs. Martyrs are brave people, too. Doctors have families to provide for, and simply asking them to put themselves and their careers in what they perceive (right or wrong) as risk under the banner of ethics, without providing the right environment for that is, in my opinion, not conductive of good results.

          • http://www.ServantLawyership.com Kathleen Clark

            I’m not asking physicians to put themselves at risk “under the banner of ethics”. One of the things I’m saying is that moving quickly to disclose medical error protects and supports physicians as much as patients for the reasons I set forth above. Physicians would be speaking up to their insurance carriers on behalf of themselves as much as in support of what their patients deserve. Collaborative law/practice enables disclosure, improvements to patient safety, and compensation to happen quickly, saving tremendous financial and emotonal resources for both physicians and patients.
            I’m not sure how no fault would work: how would systemic change be encouraged? reqired? take place? Does no fault equal no responsibility? How would responsibility be determined? I’m not sure no fault is realistic. I think it would require a sea change in how states and the federal govenment see the whole issue, which I don’t see happening any time soon.
            I’m waiting to hear if that is the language of Steve’s policy. As I mentioned, I don’t believe such terms are enforceable as against public policy.

  • http://www.shammeddoc.blogspot.com Shammed Doc

    God questions. I am not an expert, but I did do some reading and I hope my notes will help. The no-fault system does not mean that there was no error or mistake. It is a part of the system (not a choice, but obligation) that a physician would disclose an adverse outcome exactly as you mentioned. Essentially, the system makes it far more likely to achieve exactly what you want, with much less possibility of repurcusiions, or perception thereof. A patients’ compensation fund allows patients/families to apply through an administrative (not judicial) process that is much faster track than the current long litigation process. If they qualify, they get a compensation. The amount of money is much less than hitting the lottery, but many more will benefit from it than the few who have to endure litigating against their doctors. I realize that the name “no-fault” is somewhat misleading. Of course there are also mechanisms of monitoring performance in a fair and an impartial way, rather than the problematic peer review process in the US. New Zealand and Sweden have such a system. In the US, I heard that there are some pilot attempts to start it, spearheaded by the hospitals to lower their liability payments since they ensure their employed physicians.

    • http://www.ServantLawyership.com Kathleen Clark

      I don’t know what you mean, that compensation is much less than winning the lottery. I don’t think the lottery is relevant here. Is the compensation fair? Who determines if it is fair? Who controls the process? I question the process, for the reasons I’ve mentioned, but also because the patient doesn’t have a voice.

  • http://www.shammeddoc.blogspot.com Shammed Doc

    Here is a more detailed outline of one suggested form of the so-called “no-fault” system.

  • http://www.PeerReview.org Richard Willner

    In over 11 years of helping Surgeons and Physicians who were tagged with Sham Peer Review, the abuse of the Physician Peer Review processs under the Health Care Quality Improvement Act of 1986, along with the immunity to hospitals and the doctors involved, I noticed that every doctor who was “data banked” by the National Practioners Data Bank, the NPDB, has NEVER been sued.

    Yes, that is a fact. And, if these doctors are really so bad, then why have they never been sued? Why do the doctors who participated in their “shamming” have many more med mals than the one in question?

    Why are solo doctors singled out?

    Why is it so easy to call a doctor “disruptive” and that by itself becomes the reason to destroy to peer review, data bank, and destroy a career?

    The Center for Peer Review Justice, http://www.PeerReview.org, has possible solutions.

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