Tort Reform Redefined
In my last post, I argued that the current tort system neither helps to eliminate medical error nor reliably identifies “problem” practitioners. I believe that it is a failed system which benefits no one except the lawyers. So if that is true; is there a better alternative? Yes, I think there are other models that are certainly worth considering.
The ideal system needs to do three things. First, it must fairly compensate people who have been injured or disabled as a result of preventable medical errors. Second, it must help to prevent medical errors by insuring that, when problems occur, information about them is disseminated widely so that others may avoid them. Third, the ideal system should identify “problem” providers. Physicians, nurses, and others who need retraining or additional training in order to practice competently and those with addictions or other problems, should be retrained, rehabilitated, or removed from practice. The current system does none of these things or, at best, does them incompletely.
A “no fault” system would, in my estimation, make more sense. Providers would pay into a state or federally managed insurance plan intended to compensate people injured by avoidable medical errors. I have emphasized the word “avoidable” because I do not believe that the known complications of procedures and illnesses; complications which occur even when the best technique and judgment is employed, should be compensable. Every adverse outcome is not malpractice. Compensation for injury would be based upon the patient’s degree of disability or disfigurement as determined by independent experts. Lost income and earning potential should certainly be considered but additional payments to compensate for “pain and suffering” should be limited. Most importantly, all of the compensation should go to the victim. The performance of the providers and system issues that may have contributed to the problem should be subjected to a peer review process. These peer review panels would be empowered to recommend education or re-education of providers and correction of faulty systems. They would also be empowered to recommend license restrictions for providers who are deemed to be grossly negligent, impaired, or those who are “repeat offenders”. Their findings and recommendations would be widely disseminated, allowing providers and facilities to learn from their peers’ mistakes. Finally, and most importantly, this process should largely be conducted out of the court system.
If we cannot get to a “no” fault malpractice system, then can we at least reform the expert witness process? We balk at allowing pharmaceutical companies to give a doctor a pen because it might create a conflict of interest. How big a conflict of interest must be created when an attorney pays a doctor twice what he or she could earn seeing patients to serve as an expert witness? Many physicians start out as well meaning but eventually succumb to the temptation and wind up saying ridiculous things in court just to please their benefactors. Instead of that, what if we did this: physicians and other providers would be exempted from jury duty and instead would be required to serve as court appointed expert witnesses. They would serve in three person panels and their testimony would be the only expert testimony allowed in the court. Each member of the panel would receive the facts of the case, medical records, depositions and the like but, in as much as possible, these materials would be stripped of identifying information. This would help to avoid bias. Only two outcomes are possible. If the panelists agree then the case is likely to be dismissed or settled relatively quickly. Cases in which they disagree could proceed to trial but, again, the jury would only be allowed to hear from the court appointed experts; no “hired guns” allowed.
The current medical malpractice system is broken. It fails to do what it should do and, worse, it causes useful information to be hidden, serious errors to go unreported, and justice to be administered capriciously. It is time for a change. While we are busy reforming the healthcare system, we need to reform the malpractice environment.
