The 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 Facebook, Twitter, and LinkedIn.