It’s been 20 months since the Georgia Supreme Court threw out a key plank of the state’s 2005 tort reform: a $350,000 cap on noneconomic damages for medical malpractice. During that time there’s been some hopeful talk among supporters of the cap, but precious little action by legislators.
Here’s a thought: Why not scrap the medical tort system entirely, saving several billion dollars in the process?
Before every trial lawyer within 200 miles heads for my office, let me explain.
The idea is to replace the current legal system for medical malpractice with an administrative law system that draws heavily on the current arrangement for workers compensation claims.
No more lawsuits, no more juries, no more jackpot justice. Instead, patients injured while undergoing medical treatment would file a no-fault claim. Independent experts then would determine whether there was negligence and, if so, award the patient compensation based on national norms for the type of injury suffered.
The potential results: More patients receiving payments, in a fraction of the time lawsuits take today. Doctors no longer facing the specter of ruinous lawsuits. Even trial lawyers would stand to make more money on the whole.
“Our approach is basically fair compensation — quickly, and more of it,” says Richard L. Jackson, who is pushing this plan through his advocacy group called, well, Patients for Fair Compensation.
The group’s name is straightforward enough, except that Jackson isn’t only or mostly a patient. He’s a longtime health-care executive whose Alpharetta-based medical-staffing company, Jackson Healthcare, employs doctors in all 50 states.
Nor did he come at the issue of tort reform only or mostly from a legal perspective. Rather, his interest is reducing the practice of “defensive medicine” by doctors eager to avoid lawsuits.
During the 2008 presidential primaries, Jackson told me by phone this week, his firm surveyed its doctors about various candidates’ health reform plans. “What happened,” he said, “was we kept hearing the defensive medicine issue being a huge problem. We didn’t ask them about it. It just came out unsolicited.”
Jackson took another survey of 3,000 doctors nationally about “totally unnecessary medicine for the purpose of avoiding a lawsuit.” A whopping 92 percent said they had practiced it in the previous 12 months, and the respondents attributed 34 percent of all health-care costs to defensive medicine.
“I was really caught off-guard by that,” Jackson said.
Last year, he hired Gallup to poll 500 doctors. A similar proportion of them said they practiced defensive medicine, to which they attributed 26 percent of health costs.
Even using that lower estimate, Jackson said, defensive medicine may account for as much as $650 billion in health spending nationally and $13.25 billion in Georgia. That’s roughly $100 a month for every American, or almost 4.5 percent of the U.S. gross domestic product.
Reducing that cost is what sparked Jackson’s interest in medical malpractice reform. But he believes it would be good for patients, too.
“Patients really don’t have access to justice in our [current] system,” Jackson said. If a claim is for less than $150,000, “you can’t find an attorney to represent you. They have to basically go for the big deals. And that’s why they’re so vehemently opposed to caps and those kinds of tort reforms, because it eliminates the ability to go after the big claims so they can fund the other ones.”
Jackson’s group is awaiting a final actuarial study, but he said he is confident that four times as many patients as today will receive some sort of compensation, which, combined, will total two to three times the current sum.
The “extra” money, as well as the funds to operate the new system, would come from existing med-mal insurance premiums, with savings from lowering costs of administration and not having to defend against lawsuits.
The next step will come soon, as Georgia and Florida are the first states where Jackson will try to get legislation passed. I’ll withhold final judgment until there’s an actual bill with actual details. For now, it’s a promising solution to a vexing problem.
– By Kyle Wingfield