From Arizona to Florida, state lawmakers are beginning to address medical malpractice reform. Rather than traditional caps on non-economic (so-called “pain and suffering”) damages, states are getting creative about the way they approach medical professional liability litigation reform.
In Arizona, for example, State Rep. Bob Thorpe of Flagstaff has introduced legislation which would require personal injury lawyers to be certified as a “medical malpractice attorney” before they could file suit against a physician or hospital. “The idea is to try to weed out the difference between good, legitimate attorneys that are practicing in the area of medical malpractice … from the ambulance chasers,” he said. Due to the complexity of the issue, Thorpe’s bill would also require that these cases would only be heard by judges who have been through special training in medical malpractice cases.
In Oregon, Gov. John Kitzhaber has taken an active role in trying to reduce healthcare costs in their state. Legislation in that state would allow physicians and patients — deemed to have legitimate injuries — to try to work out their differences before anyone files a lawsuit. However, many Oregon physicians were hoping for more sweeping reforms.
A recent article in Forbes asked the probing question: “Is the Current Medical Malpractice Litigation System Broken Beyond Repair?” Hopefully not.
A recent study published in Health Affairs indicated that physicians spend a great deal of time in court rather than caring for patients. Many physicians practice “defensive medicine” where tests and procedures like CT scans and MRI scans are ordered not to help the physician diagnose or treat a patient but rather to protect themselves from frivolous lawsuits.
According to Dr. Richard Anderson, CEO of The Doctors Company, the nation’s largest malpractice insurer, “the average physician in the US, in every specialty, spends a significant portion of his or her career in court, defending claims of medical malpractice, the vast majority of which are found to be at best fruitless, at worst frivolous.” Dr. Anderson indicates that the average physician spends 50.7 months, or over four years of a 40-year career fighting malpractice claims- the majority of which produce no liability payment.
The Forbes article illustrates the need for fundamental reform of the medical malpractice system – something never addressed in “Obamacare.” Malpractice claims involve a significant emotional cost to physicians as well as to their patients. Fear of a malpractice claim can undermine a physician’s clinical confidence, undermines the patient-physician relationship and drives doctors to order excessive and unnecessary medical tests.
In Georgia and Florida, bills are being prepared to completely revamp the medical malpractice litigation system. Patients for Fair Compensation, a Georgia-based nonpartisan organization is leading the effort in those states to make a real difference. The organization is dedicated to educating and engaging citizens about the impact defensive medicine has on patient care. “Defensive medicine” can be defined as the practice of ordering more medical tests, procedures or consultations than are medically necessary in order to keep from being sued. Defensive medicine is estimated to cost the U.S. health care system as much as $650 billion a year.
Patients for Fair Compensation is working with stakeholders in Georgia and Florida to replace our adversarial medical malpractice system with a no-blame, administrative system that provides access to justice for all patients who have legitimately been harmed while keeping physicians and other healthcare professionals out of the courtroom. It is advocating the creation of a “Patients’ Compensation System” or PCS to replace the dysfunctional and broken medical malpractice litigation system.
The PCS solution lowers health care costs by reducing the incidence of defensive medicine as physicians would no longer be hauled into court and personally liable when patients are harmed. Patients would instead take their claims to a panel of medical experts who, if they found a patient had been legitimately harmed, would then send the claim to a compensation board for compensation.
The PCS solution also improves the quality of medical care by establishing a system that puts patients at the forefront of the process and realigns incentives towards patient safety and helps to reduce medical errors. By creating this no-blame system, physicians, hospitals and other healthcare professionals would be encouraged to report medical errors through a transparent system which ensures that all patient complaints are heard and quickly resolved outside of a courtroom.
Simply put, the PCS is a 21st Century solution which could serve as a model for states as they begin to address medical malpractice reform.