Healthcare reform is at the top of America's political agenda and rightfully so. There is much that needs correcting, but it will be difficult to achieve fundamental and effective reform without a primary re-evaluation of the way the system resolves conflict between doctor and patient. The fault-based tort system with its focus on drawn-out litigation and punishment for the “negligent” physician has tentacles that pervade all aspects of medical care. While arguments fly back and forth about the actual dollars involved, there can be no question that the tort system drives unnecessary costs in both hospital and outpatient care. It affects peer review in a deleterious way and it significantly impairs the patient-safety effort by discouraging the voluntary reporting of errors by medical personnel. No sincere effort at healthcare reform in the U.S. can appropriately progress without addressing this fundamentally flawed process for resolving doctor/patient conflict.
The state of Michigan achieved the much desired medical “tort reform” in 1993 with financial caps on noneconomic damages and certain restrictions that make it more difficult to launch a lawsuit. It has led to fewer lawsuits and a lowering of malpractice insurance rates in the past few years, but the adversarial process remains in place and is deeply flawed. Most of the money in the system is taken by the legal process, not by patients who have suffered an injury. It still takes years for conflict resolution that does not help injured patients who need compensation at the time of the injury. A patient must initiate the process by filing a lawsuit. Those injured patients who elect not to file a lawsuit have no chance, of course, of receiving compensation. These criticisms alone emphasize the need for an alternative process.
There is much known about the current malpractice system that doesn't make physicians happy. Perhaps at the top of the list are the studies that show that most people who sue have not suffered a medical injury. This kind of information is not too surprising to physicians familiar with available malpractice data. In Michigan, it is borne out by the fact that even 13 years after perhaps the best tort reform legislation in the country, 75% of the cases filed have no payout, 20% are settled out of court and about 5% go to trial and, when they do, doctors win a majority of the cases.
Part of the reason for this is that physicians are not initially involved in the process. Who is in the best position to identify a medical error? Physicians, of course, but physicians rarely voluntarily report errors under the tort system. So patients who suspect that an error adversely affected their care have no idea whether or not it is true. They have no alternative but to consult an attorney who also has no idea. The attorney hires a doctor at $500 an hour to review the chart and make a determination. Such a process is very costly and without merit.
However, the same studies that reveal that most people who sue have not suffered a medical injury also reveal that most patients who suffer a medical injury do not sue. Why don't more patients sue? It is hard to know for sure. Some don't sue because they don't realize they have suffered a medical injury. Some don't sue because there isn't enough potential money in the case for an attorney to get involved. Some don't sue because they like their doctor and they know that if they sue they will lose their doctor. Some don't sue because they despise the tort system as much as physicians do. But none of these reasons provide an adequate rationale for not compensating a patient who has, in fact, suffered a genuine medical injury that caused loss of income and personal suffering.
But since these people do not sue then, of course, nothing is known about their injuries. And if nothing is known about their injuries, then, of course, nothing is known about how to prevent them. Since most people who do sue have not suffered an avoidable medical injury, one can very effectively argue that the current system provides all the wrong information if the goal is medical error prevention and appropriate patient compensation. Those who are in the best position to identify actual errors in care are physicians, but under the tort system physicians are not likely to report them.
So what would an alternative system look like if these two goals were paramount: No. 1: the identification and prevention of medical errors and, No. 2, the appropriate compensation of those patients who have, in fact, been injured in the medical care system?
Unlike the current system, a new program for patient compensation would need to be open and transparent. Every hospital would have a patient-safety office that would focus on error prevention. Every patient would be asked upon discharge if they felt their care was impaired in any way by a medical error. Every complaint would be investigated. According to proposed legislation prepared by a task force of the Michigan State Medical Society, a hospital would have 21 days to respond to a patient complaint about error. The primary obligation of all medical care personnel would be error reporting—and near misses would be included, too. The ultimate goal would be for the great majority of medical errors to be reported by the caregivers themselves. This information would be collated, disseminated to all hospitals and acted upon quickly so that processes that lead to error could be corrected before further patient harm occurs. If there is an agreement at the hospital level that a medical error led to an avoidable patient injury, then the patient could be quickly compensated at the time of the injury, which is when financial support is most needed. Also, the events that led to the error could be examined and corrected in a timely fashion so that future patient injury could be prevented.
Appeals would be made to a state commission consisting of two citizens, two physicians, two hospital representatives, an insurance representative and an attorney. The commission would employ an ombudsman whose job it would be to investigate cases appealed from local hospitals. This commission would also have a defined period to respond as to whether an avoidable medical injury occurred. The commission could refer the case for review by a committee of three physicians who would make a recommendation to the state commission as to whether or not an error occurred. Compensation would be awarded to injured patients based upon a pre-determined compensation schedule, much like that used for workers' compensation or the auto insurance no-fault process.
The state commission would also have the job of collating medical errors from all the hospitals in the state and promptly informing hospitals of necessary changes to prevent future errors and subsequent patient injuries.
If denied at these two levels, patients would have a final route of appeal to a medical court. At this point, attorneys would represent the parties for a defined fee as is the case in workers' compensation court. A medical court judge with appropriate experience in medical compensation law would make a final decision. This judge would have the right to level very significant fines if physicians and/or hospitals were found to have hidden information, changed charts, or otherwise hindered the investigative process.
In this approach, patient compensation is not linked to proving negligence. Rather, it is linked to the occurrence of an avoidable medical error that led to medical injury. A question of physician misbehavior or incompetence would be referred to the state medical licensing board and pursued thru a separate process. A physician could be required to review certain educational requirements, sanctioned in multiple ways or have his/her license revoked, but this process would occur independently of whether or not a patient was compensated for an injury.
This proposed legislation is the result of six years of meticulous work by the Michigan State Medical Society's Task Force on a Patient Focused Compensation System stemming from a resolution from the Genesee County Medical Society, Flint, Mich. If adopted, this approach would encourage doctors to report errors, provide a more appropriate universe of actual medical errors and therefore assist error-prevention efforts, return most of the money in the malpractice system to patients who have suffered injuries, and allow doctors to work with their patients to achieve appropriate compensation when injury occurs. It would dissolve all the barriers to conflict resolution and medical error prevention that are so ingrained in the tort system.
The primary premise of medicine is well-known: First, do no harm. But physicians are human and mistakes will be made. Mistakes should never be tolerated and everything must be done to prevent them, but mistakes will nonetheless occur. So if harm occurs, what is the responsibility of the medical profession? As a profession, physicians have neglected to build an appropriate structure for recognizing error and properly compensating those who suffer injury as a result of error. It is part of the reason the tort system exists. It is time to offer an alternative that will help, rather than hinder, the ultimate goals of healthcare reform.
Robert Soderstrom, M.D.ChairmanTask Force on a Patient Focused Compensation SystemGenesee County Medical SocietyFlint, Mich.
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