I became interested in this topic ever since I had to cancel my liability insurance this summer. It had tripled in cost and I just couldn't afford it. I am a nurse practitioner, and my salary is modest. I have never been sued or named in a suit. I know that the CW from the dems is that "tort reform" is a dirty word and we would be taking away people's right to a jury trial, a vital part of our democracy. I responded to some of the diaries about tort reform, but hadn't really done much research on the topic and was going by my experience and gut instinct. I have sought out some more information on plans that really are reform, not the repubs "malpractice caps"
Don't think there is the need for reform? What I'd like to suggest in this diary that there is reason for malpractice reform. The system is broke. Note that I am not talking about tort reform in general, which includes suits against corporations, or drug companies but malpractice, one person suing their doctor or nurse because of harm they have sustained.
These ideas are taken from the site
Common Good which addresses the Malpractice Problem. I don't know if you would characterize them as non-partisan or bipartisan, but they have folks from both sides of the aisle, including George McGovern (and wince, Newt Gingrich) They also have done some good thinking on the topic and have come up with some suggestions for true reform. The italicized stats are from their site, and they are referenced there to the original sources.
What is wrong with the current system?
1) Doctors and nurses and their patients are not natural adversaries. Health care providers would like people to be compensated if they have been negligent in their care. The current system of justice breeds distrust on both sides, with patients getting bad care and doctors fearing abusive claims.
2) There is no reliable justice. Most doctors who make errors do not get sued and most lawsuits are not about negligence but about poor medical outcome. In other words, juries see someone unable to walk, have pity for the human tragedy and vote for compensation, whether negligence was involved or not.
- In one study, the percentage of all adverse events attributed to "negligence" (as defined by physicians) was 27%.
- Only 1 in 6 malpractice claims filed involved both negligence and injury.
- 40% of the cases with no evidence of negligence nevertheless resulted in payment to the patient.
- Fewer than 20% of malpractice claims actually filed had an identifiable basis in medical negligence.
3)
There is no reliable justice. Many people who should be compensated are not. People who suffer from an adverse event either do not make a claim or are unsuccessful in their claims. The medical justice system has been compared to a lottery, so random is the justice.
* 90% of malpractice cases are resolved before trial.
* 63% are dropped or dismissed.
* 27% percent are settled.
* Of the 10% that go to trial:
* 33% are settled.
* 54% lead to a defendant's verdict.
* 13% lead to a plaintiff's verdict.
* Less than 7% of all malpractice claims reach a jury verdict.
- Defendants win four out of five of those cases.
- A 1991 New England Journal of Medicine study found that nine out of 10 victims of disability-causing malpractice go uncompensated. That's right -- overwhelmingly, people harmed through medical mishaps are not compensated.
- Only 1 in 8 patients who suffered from an adverse event due to negligence filed a medical malpractice claim, and only 1 in 15 who suffered from such an adverse event received compensation.
4)
There is no reliable justice. The amount of money that the plaintiff gets many times is less than 50% of the award.
- Only 22 cents of a dollar moving through the U.S. tort system compensates a plaintiff for economic loss (and 54% of that dollar never even reaches the victim):
- 24 cents goes for non-economic loss;
- 21 cents goes to administrative costs;
- 19 cents goes to the plaintiff's attorney fees; and
- 14 cents goes to defense costs.
5)
It is extremely complex, costly in money and time and burdensome to file malpractice lawsuits.
- On average, it takes more than 5 years for an insurer to pay a malpractice claim after the date of the incident--mostly due to delay in reporting (22 months) and the timeliness of the tort system (43 months).
- Plaintiff's case processing times (from filing to verdict or judgment) in the largest 75 counties averaged 33.2 months.
6) The current malpractice situation means that
health care providers have a CYA (cover you ass) mentality. How many MRIs are needlessly ordered because of concern for liability?
7) Liability insurance has priced some people out of the medical business. If the doctor has to pay more in premiums, then it gets passed down in overhead that eventually you and I pay for in our visits. Some excellent doctors are leaving private practice because of the high cost of premiums.
- The average claim payment in 1986 was $95,000 and in 2002 it was $320,000.
- The rate of claims has remained constant (although costs are rising). Approximately 15 claims filed per 100 doctors - 30 % of which result in insurance payouts.
- Robert B. Surrick, a "highly respected lawyer" from Chester County, PA, and the author of Lawyers, Judges and Journalists, says a 17-year-old boy died following a traffic accident because there are no more neurosurgeons practicing in Chester County. The boy was transferred to a larger medical center two hours from where the accident occurred. "[I]t's critical that neurosurgeons see head trauma patients within an hour. 'The last neurosurgeon in [the county] was Sam Lyness, a world-class neurosurgeon,' Surrick said, but Lyness left Pennsylvania when his malpractice premiums reached $383,000. With no neurosurgeons, [the local hospital] shut down its trauma center in 2002. Surrick said the death of the 17-year-old is only one of a number of similar deaths in eastern Pennsylvania."
8)
The current system actually diminishes the likelihood of reporting of errors. It does not encourage examination of errors, with the goal of fixing systemic problems, it conversely encourages the covering up of problems. The systems tend to protect doctors who need to be removed from practice, by enabling them to sue other physicians who might question their competence. Those who regulate doctors are often hesitant to revoke licenses without expert testimony. Doctors and nurses want to provide quality care, but they are human and make mistakes. We need to develop a system that examines problems and makes improvements to prevent future errors, rather than a system where the tendency is to cover up errors.
How to build a reliable system of medical justice?
I admit, I had pretty vague plans on fixing the system until I read Elements of a System of Medical Justice a 30 page monograph with suggested reform. This was compiled by Common Good for a forum sponsored by AEI and Brookings Joint Center for Regulatory Studies and Common Good. They went to other countries (borrowed ideas from England, Germany, Scandanavia and Japan, among others) to look at how they were handling medical malpractice claims.
Here is a very abbreviated take on what it would look like. Basically, it calls for the creation of a special health court that would act as an expert panel in handling medical justice.
Here are some of the elements of the special health court:
1. Judgment would be made consistently by court appointed experts using standards of care.
2. The aim would be truth seeking rather than adversarial opposition. Data would be gathered by the experts, not by attorneys for defense or plaintiff.
3. The judgments would be rational, with uniform, fair and codified compensation
4. There would be accountability for negligent providers.
5. There would be powerful incentives for quality improvement in medical systems. Practitioners and hospitals could focus on identifying and reporting errors to reduce mistakes and make improvements and set standards of care.
6. Administrative efficiency and cost reductions
Well, Kossacks, I have just skimmed the top of this complex issue. What I like about the Common Good approach is that they have looked at the problems of the current system and are making recommendations that address these problems. It seems like they can see the big picture and are trying to work on an approach that would decrease medical errors, provide patients who have been injured a fair, consistent and just means of receiving compensation and not be punitive in approach to health care professionals. The one downside I see is that Frist has come out in support of this. I instinctively suspect anything that he would support. I recommend the entire monograph for all the details.
I also think that we need to be supporting and promoting progressive reform in this area, rather than reacting to what the repubs submit in the way of malpractice caps, which is an ill-conceived band-aid that doesn't really address the true problems with our current system.