Patients deserve a medical malpractice early offer

Patients deserve a medical malpractice early offerThe following column was published on March 25, 2012 in the Nashua Telegraph.

Medical malpractice historically has been a contentious issue. Doctors have argued that the system is broken, promotes multi-million dollar awards disproportionate to the injuries suffered, and encourages the ordering of unnecessary tests to avoid being sued, a practice known as defensive medicine. Trial attorneys, on the other hand, have claimed that suing doctors is the only way for injured patients to receive compensation and have dismissed the idea that medical malpractice has contributed much to medical spending.

Lost in this debate are the patients.

If you were a patient harmed by a medical mistake, the current malpractice system did not serve you well. According to a New England Journal of Medicine study, nearly one in six cases that involved legitimate medical error received no payment. And for those that did, 54 cents out of every dollar went to pay administrative and attorney fees. Worse, patients had to wait a long time before receiving any compensation, prolonging the stress and emotional trauma typically associated with a malpractice suit. In New Hampshire, the average case took almost four years to resolve.

The adversarial nature of a malpractice lawsuit also does little to improve patient safety. Ideally, doctors and hospitals should openly discuss and learn from these mistakes so they won’t be repeated. However, the current system revolves around an intimidating legal environment that promotes a culture of fear and secrecy. Many malpractice insurers, for instance, tell doctors not to talk to injured patients.

On March 28, 2012, the New Hampshire Senate passed Senate Bill 406, which will establish an “early offer” program that expediently compensates injured patients. The bill’s status is now pending in the House.

Under Senate Bill 406, instead of having to wait years without guarantee of any payment, patients can choose to enter a settlement with their medical provider. Medical costs and lost wages would be covered, along with damages for pain and suffering, ranging from $1,700 for minor injuries to $117,000 for grave harm. If there is agreement among the parties, payment is made and the process is over within months, sparing patients from the uncertainty and stress of malpractice ordeals that formally could take years to resolve.

It should be emphasized that participation in this program will be purely voluntary. The option to pursue a malpractice case through a traditional lawsuit will still remain.

Consider the voice of Nan Stearns of Amherst, NH, an elderly patient who had to have her hip replaced in 1995 because of a medical mistake. Her malpractice case lasted six years before a settlement was reached.

“If a program like early offer had been available to me back then, I would have used it without question,” Stearns said while testifying at the Legislature in favor of the bill. “It would have sped up the process, given me resolution, and most importantly, would have enabled my husband and me to move on with our lives.”

A quick and more predictable resolution to malpractice cases also helps doctors move and find resolution. Studies show that physicians who are sued not only suffer from depression, burnout, and suicide, they also tend to make more medical mistakes in the future. That affects their patient population since most doctors that endure a lawsuit will continue to practice medicine. Making the malpractice experience less acrimonious, perhaps, can also be a step towards a more open process that can improve patient safety.

Senate Bill 406 has the support of the NH Hospital Association, NH Medical Society, NH Dental Association, and the Business and Industry Association. All patients should support granting those injured by medical mistakes the option to pursue fair compensation in a matter of months, while preserving their right to go to court, as well.

is an internal medicine physician and on the Board of Contributors at USA Today. He is founder and editor of, also on Facebook, Twitter, Google+, and LinkedIn.

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  • karen3

    $117k for a grave error is ludicrous.  What is also lost in the debate is that Medicare has “first dibs” on any settlement to reimburse itself for what it has paid.  At $117k offer means that the patient most likely would receive nothing.  

    Almost every single state requires insurance companies, in the instance of auto, fire or other casualty, to pay promptly and without resort to litigation the reasonable damages incurred, including pain and suffering. If they fail to do so, the victim can sue for multiplied damages, with the multiple owed by the insurer for bad faith.  As anyone who has been in car accident can attest, usually the process of having repairs covered is a pretty straightforward process with relatively few transactions costs. The real issue here is the medical community’s intransigence in  admitting error, which feeds extreme transaction costs, which is the real cause of high medical malpractice premiums.  Instead of a flat amount, medical malpractice insurers should be required to pay victims a reasonable settlement within say, 60 days of a claim.  Good faith is a principle that has governed insurance for more than a hundred years. There is no reason why it should not apply here. 

    The only thing that has been shown to in fact reduce medical malpractice premiums is a reduced rate of errors.  Why doesn’t the medical community take medical error more seriously.  Put it another way, if the airlines in the 70′s made a huge argument about how airfares are skyrocketing because of the liability caused by a 747 a day crashing, the reasonable policy response would be to tell the airline industry to clean up its safety act, not to insulate air carriers from liability.  The equivalent of a 747 full of people dies in the US EVERY SINGLE DAY due to preventable errors.  Maybe that would be a more fruitful area for effort.

    • Payne Hertz

       Brilliantly stated, Karen. Of course the reason the medical system doesn’t do more to prevent error is the same reason Ford didn’t bother to correct the deficiencies of the infamous Ford Pinto and its exploding gas tanks–it costs less to adjudicate the occasional lawsuit than it does to correct the problem. What’s more, malpractice is actually profitable when you consider how much more revenue is brought in from injured patients versus how much money goes out in the form of malpractice verdicts, most of which also finds its way back into the system in the form of medical treatment needed to deal with the injuries.  If medical errors disappeared hospitals would lose money overall so there is little financial incentive to do anything about the problem and morality is irrelevant in this system.

      Nothing is more disastrous for patient safety than reducing medical liability and insulating doctors and hospitals from the consequences of their screw-ups.

      • karen3

        One thing the medical profession has not considered is that if any appearance of justice via malpractice litigation is thwarted, there are other means to justice, such as complaints to medical boards, medical insurers, the press, pressure for criminal prosecution, calls for medicare sanctions, etc.  Plaintiff attorneys will tell a litigant with a hope of compensation to shut up.  If there is no compensation in sight, and the charges stick, people can be vocal, in ways that are well beyond a bad review on an internet doctor site. 
        When the owner of the Chicago Tribune was killed due to medical error, the family did not file suit — they went after the University of Chicago Hospital’s Medicare contract.  The immediate jeopardy citation will cost UC 1 percent of the hospital revenues from Medicare/Medicaid this year. Tell me what is more expensive.  My bet is the revenue cut. At what point would you rather have your insurer quietly settle for policy limits and at what point would you rather have someone going after your medical license, accreditation, your DEA license and medicare contracts aggressively?  If you are an ER doc or hospitalist, it’s pretty hard to get a job if you can’t work for any hospital that has a contract with Medicare.  Pigs get fat, hogs get slaughtered.

  • Payne Hertz

    There is nothing preventing early settlement of malpractice cases but insurance company stonewalling and the refusal of hospitals and doctors to accept personal responsibility for medical errors and malpractice. Instead, they continue to finagle ways to rob the victims of their legal rights, such as laws like this one.

    You state that this system is voluntary and patients can still pursue a malpractice lawsuit if they don’t like the results. But the devil is in the details. You fail to mention that if an injured patient rejects a settlement offer under this system, he then faces a dramatically increased burden of proof should he decide to opt for a lawsuit instead. Even the authors of this legislation admit that this arbitrary and unjust  increase of the standard of evidence would be near impossible to meet, making a malpractice lawsuit highly unlikely to win regardless of the facts.

    The maximum awards under this law are a cruel joke—$117,000 for a lifetime of pain and suffering or the death of a loved one. The original legislation offered a paltry $56,000 but was altered under pressure. This from a medical profession that complains it can’t get by on annual incomes averaging $250,000 or more.

    Of course, there is nothing requiring an insurer to offer even this parsimonious sum. If an injured patient doesn’t like the inevitable low-ball offer the insurance company throws at him, he can opt for a hearing, but this hearing will be held before an insurance industry-appointed and financed arbitrator whose ruling will be final. Experience from corporate-sponsored arbitration in other contexts shows that arbitrators do what is expected of them and rule against the litigant in the overwhelming majority of cases. The paltry caps are there to protect against the occasional outburst of conscience.

    This law is nothing but a trap for the unwary and the desperate who are lured into a negotiations framework that has been rigged to favor insurance companies and rob patients of their right to a civil trial and full redress for their suffering. Patients are not even given the right to know what the insurance company is offering before surrendering their rights under this system, so they do so blindly.

    What is needed for patients is a law that penalizes insurance companies for deliberate stonewalling, and sanctions against doctors and hospitals who withhold or suppress evidence of medical error and malpractice, including jail time. Patients need to be compensated for medical errors and not just “malpractice” per se, as there is no just or rational reason why patients are required to pay for medical care in which they are injured, even if that is not the fault of the doctor or hospital.

    • NewMexicoRam

      And what about patient’s or families who sue and essentially lie or stretch the facts, to bring a lawsuit?  Shouldn’t they be up for jail terms?  That’s the kind of thing that one family tried to pin on me.  It was dismissed, but still cost my insurance company over $24,000 to defend me.

      • Payne Hertz

         Without knowing the details of the case, I can’t make a judgment on it. I have no idea whether the person really “lied” or “stretched the facts” as you claim or there was a legitimate problem here that you refuse to accept. But if you can prove that someone falsely accused you of something, then that is currently actionable under the law. 

        The fact that a case was dismissed is not evidence that it shouldn’t have been brought, as sometimes the litigation process is the only way to establish the facts in a particular case and determine whether it meets the criteria for malpractice. There isn’t a doctor or lawyer going who can accurately make that judgment in every case–let alone a layman– for to do so requires specialized knowledge of all aspects of medicine which no one person possesses. How successful do you think you’d be in distinguishing dental malpractice from ordinary bad outcomes? Without specialized knowledge of that field, probably not very.

        There is a world of difference between misinterpreting evidence and deliberately suppressing it.

        • NewMexicoRam

          My point is, the patient withheld self-incriminating records from me and the family sued me, costing my insurance $24,000 in a case that should never have been filed.

  • Donald Tex Bryant

    Malpractice suits seem to always stir up intense debate.  I do believe that arguments over this have been going on for years.  I like the University of Michigan’s approach–the doctor and hospital apologize for mistakes right away.  It has been shown to decrease lawsuits while improving outcomes for the patients in the end, even if not financially.

  • Hornblower1810

    Insurance company “stonewalling” is a financial tactic relying upon the “time value of money” and “investing the float”.  These are bedrock foundations of all insurance company profits and aren’t likely to change soon.

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