A Different Approach to Malpractice Reform

According to press reports, Congressional leaders have given up on sweeping limits to malpractice damage awards this year.

There will be heated rhetoric, to be sure. And the leadership might try to move some smaller "message" bills targeted to just the most sympathetic doctors, like obstetricians and gynecologists.

That is fine, but there may be a more productive approach.

Last year, Senator Michael Enzi introduced a bill (S. 1518) that would encourage comprehensive malpractice reforms and reductions of medical errors.

The idea is for the federal government to provide funds for states wishing to experiment with alternative malpractice compensation systems.

Few people argue that the current system works. Many patients injured by malpractice never sue. Those that do enter the "jackpot justice" lottery. Many receive no compensation -- others receive huge awards. It can take years for lawsuits to result in payments to victims.

On the other hand, health providers are sometimes sued in cases where the patient was not harmed. Sometimes patients sue after disappointments or bad outcomes that were essentially just bad luck -- not malpractice. Often these claims get settled anyway, due to the cost and uncertainty of a trial, especially with the plethora of "hired gun" experts available to litigators willing to twist the facts in front of an impressionable jury.

Worst of all, the current malpractice system does not really reduce medical errors. Instead, it creates incentives for health providers to cover up their mistakes. Unless health providers are encouraged to discuss and learn from their mistakes, patients will suffer from the same errors made over and over again.

The Enzi bill would allow specialized "health courts" and other methods of getting rapid compensation to victims instead the lengthy lawsuit process. Injured patients or their families could still use the lawsuit system if they didn't want to use the expedited procedures.

This bill is a good start, and should be taken seriously by consumer and patient advocates. Malpractice reforms should go beyond just capping damages. Real reform should also seek to improve health care quality and reduce errors.

Links:
Centrist Policy Network Enzi Reliable Medical Justice Act (S. 1518)
Centrists.Org CBO's New Brief on Medical Malpractice Implies that Capping Awards is Not Enough (January 25, 2004)
Congressional Budget Office Limiting Tort Liability for Medical Malpractice Economic and Budget Issue Brief (January 8, 2004)
Troyen A. Brennan and Philip K. Howard Heal the Law, Then Health Care Washington Post (January 25, 2003)
Common Good (Ideas for Legal Reform, including tort reform in Health Care)

Posted by Jeff Lemieux at February 3, 2004 10:05 PM