The American legal systems response to medical injuries fails patients and medical providers. Malpractice lawsuits take a long time to compensate deserving patients for the losses they suffer. Jury verdicts vary widely and not always with respect to the patients actual needs, or with the quality of the physicians care. The inefficiency of the process is staggering, with an administrative cost of nearly 60%. And the blame and shame approach of litigation inhibits learning and the collection of information about errors that would be most useful to avoiding harm in the future.
At the same time, most boards of medical registration are equipped not to ensure the competency of the physicians they license, but only to pursue disciplinary remedies against those doctors whose patients bring a complaint. Physicians justifiable fear of the legal system inhibits open communication about errors, reinforcing a culture of nondisclosure and noncollaboration in efforts at improvement.
In all of this, what should be the principal objectives of the law are lostfair and effective compensation, predictable standards for medical practitioners, accountability for hurtful incompetence, and the wise use of todays mishap in order to prevent tomorrows. Unfortunately for all of us, the conventional ideological debate over tort reform misses these central points.
A bill about to be introduced into the U.S. Senate by Sens. Max Baucus (D-Mont.) and Michael Enzi (R-Wyo.) would encourage the states to experiment with alternatives to the current systeman approach we strongly endorse. We know that more tort reform of the usual kind will simply loop us back to the problems of the present, as it always has. Our hope is that the bill, if it becomes law, would foster initiatives not limited to tinkering with a broken system, but rather reaching out to change it fundamentally. Because no single alternative has a monopoly on the odds for success, our hope is also that initiatives in the states will be diverse as well as innovative.
Common Good and its state affiliate Common Good Coloradoboth nonpartisan coalitions of individuals interested in legal reformhave been working together to develop alternative approaches that mitigate the adversarial nature of malpractice cases, promptly compensate patients and promote enhancements in patient safety. The goal is a system that as much as possible separates the compensation of injured patients from the investigation of adverse events and, where appropriate, ensures accountability of erring practitioners. The current system now yokes these functions together, to the disadvantage of both.
With the support of the Robert Wood Johnson Foundation, Common Good and its research partners at the Harvard School of Public Health have led the effort to model a system for an administrative health court or other process for resolving injury disputes and compensating injured patients. The hallmark of the administrative health court approach is the use of trained adjudicators with specialized healthcare expertise to make evidence-based rulings assisted by independent medical experts. This approach would bring greater specialization and expertise to the system, promote rational and horizontally equitable determinations of noneconomic damages and help enhance patient safety.
As implemented in specific initiatives at the state level, an administrative compensation model might take a number of forms. In an iteration proposed by Common Good Colorado, the existing link between compensation and accountability would be entirely undone. Building on years of experience at both the state and federal levels with no-fault programs, states would identify appropriate areas of practice (obstetrics, for example) in which the current system is particularly deficient and remove those cases from the courts altogether. Compensation would be based on medical causation, and payment would be tailored closely to the patients or the familys actual needs. Investigation of the event would occur in a separate arena, employing medical rather than legal standards, unimpeded by any need to avoid or defend against a monetary claim.
A key goal of both approaches is to promote patient safety. Both would have robust links to patient-safety programs and initiatives. Simply expanding the base of claims, for example, would increase the pool of data available for root-cause analyses of errors and systems failures. De-identified information could be provided to patient-safety authorities to facilitate epidemiological analysis of broad patterns of errors. With these and other safety initiatives, new systems would help to foster an environment within which physicians and hospitals could learn from past mistakesand take steps to prevent these from recurring.
Many prominent organizations have called for pilot projects like health courts or administrative compensation systems, including the AARP, the American College of Emergency Physicians, the American College of Obstetricians and Gynecologists, Consumers Advancing Patient Safety and the Joint Commission. This strong stakeholder and policymaker interest provides an excellent foundation for establishing pilot projects to test the feasibility of these and many other kinds of proposals. Many would have the potential to promote consistency in the medical justice system, enhance patient safety and expedite compensation to injured patients.