Senators Hillary Clinton and Barack Obama published an article in the New England Journal of Medicine last week, pushing their proposal for medical malpractice reform - the National Medical Error Disclosure and Compensation (MEDiC) Bill (S. 1784). The solution, according to the two Senators, is ... doctors should own up to doing something wrong, and compensate the patient. Interestingly they still want to make turning to a lawsuit without caps on awards available if the negotiation doesn't satisfy the patient.
Instead of focusing on the few areas of intense disagreement, such as the possibility of mandating caps on the financial damages awarded to patients, we believe that the discussion should center on a more fundamental issue: the need to improve patient safety.
They are right in that the emphasis has to be on patient safety and eliminating avoidable medical errors. But, to my knowledge, despite the fact there are a number of states with hard caps on punitive damages and pain and suffering awards there have not been either increases in medical errors or large numbers of patients complaining. The complaints, on the contrary, come from the lawyers.
Studies show that the most important factor in people's decisions to file lawsuits is not negligence, but ineffective communication between patients and providers.4 Malpractice suits often result when an unexpected adverse outcome is met with a lack of empathy from physicians and a perceived or actual withholding of essential information.4 Stemming the causes of medical errors requires disclosure and analysis, which create tension in the current liability climate.
The current tort system does not promote open communication to improve patient safety. On the contrary, it jeopardizes patient safety by creating an intimidating liability environment. Studies consistently show that health care providers are understandably reticent about discussing errors, because they believe that they have no appropriate assurance of legal protection.5 This reticence, in turn, impedes systemic and programmatic efforts to prevent medical errors.
All of this is true.
Our proposed MEDiC program provides grant money and technical assistance to doctors, hospitals, insurers, and health care systems to implement programs for disclosure and compensation. The MEDiC model promotes the confidential disclosure to patients of medical errors in an effort to improve patient-safety systems. At the time of disclosure, compensation for the patient or family would be negotiated, and procedures would be implemented to prevent a recurrence of the problem that led to the patient's injury.
So their solution is not to change the tort system, but to encourage doctors to be more open with their mistakes. I'm not sure I see how that helps the physician, though it would likely would help to improve patient safety.
The terms of negotiation for compensation ensure confidentiality, protection for any disclosure made by a health care provider to the patient in the confines of the MEDiC program, and a patient's right to seek legal counsel; they also allow for the use of a neutral third-party mediator to facilitate the negotiation. Any apology offered by a health care provider during negotiations shall be kept confidential and could not be used in any subsequent legal proceedings as an admission of guilt if those negotiations ended without mutually acceptable compensation.
There is a claim that physicians would be protected in these disclosures, but I don't see how. The patient, after hearing the disclosure, is free to leave the program and sue - without caps - in standard fashion, but now with more information. This is not very encouraging, again from the physician's standpoint.
The biggest problem with this proposal is the example that Sens. Clinton and Obama choose to demonstrate its effectiveness - a program at the University of Michigan hospitals.
In 2002, the University of Michigan Health System launched a program with three components: acknowledge cases in which a patient was hurt because of medical error and compensate these patients quickly and fairly; aggressively defend cases that the hospital considers to be without merit; and study all adverse events to determine how procedures could be improved. Before August 2001, the organization had approximately 260 claims and lawsuits pending at any given time. As of August 2005, the number had dropped to 114 (see graph). The average time from the filing of a claim to its resolution was reduced from approximately 21 months to less than 10 months. Annual litigation costs dropped from about $3 million to $1 million.
What is wrong with that? Everything sounds peachy. The problem is that Michigan also has damage caps, which may well be a factor in the patient's willingness to accept a negotiated settlement.
In a medical malpractice action, there is a limit on the amount recoverable for non-economic damages, including pain and suffering, inconvenience, physical impairment, and physical disfigurement. The maximum for all plaintiffs, resulting from the negligence of all defendants, was set at $280,000 in 1993, except in instances of paralysis due to brain or spinal cord injury, impairment of cognitive capacity, or loss of reproductive ability, in which case the limit was $500,000. Mich. Comp. Laws Ann. § 600.1483 (West 1996). These amounts increase annually with the cost of living, Id., and are $349,700 and $624,500 in 2002. Any jury award in excess of these amounts must be reduced by the court. Mich. Comp. Laws Ann. § 600.6304(5) (West 2000).
The other example given is a VA hospital system. I've worked in VA hospitals during residency. VA hospitals are not at all comparable to public or private hospitals.
While the desire to reduce medical errors is admirable and desireable, and "systems" to reduce errors may be helpful, one of the best ways to do this is to make sure that the doctors and nurses themselves are superb, both in their makeup and their training. That requires making medicine a highly desireable occupation again. It still is, but not as much as it was. There are many things that are needed to do that, only one of which is tort reform. On that count this bill doesn't do it.