How Should Medical Malpractice Litigation Be Dealt with in U.S. Health Care Reform?

The Washington Times (Washington, DC), August 23, 2009 | Go to article overview

How Should Medical Malpractice Litigation Be Dealt with in U.S. Health Care Reform?


Byline: David A. Hyman and Charles Silver, SPECIAL TO THE WASHINGTON TIMES

We've just finished the third malpractice crisis of the past 35 years, and the script is always the same. Physicians complain that high malpractice premiums make health care too expensive or unavailable at any price. Plaintiffs' lawyers respond that the problem is that physicians are routinely committing malpractice and getting away with it.

Lobbyists appear, campaign contributions are made, op-eds are published and hearings are held. Both sides offer tragic anecdotes supporting their respective positions. Empirical research is ignored, quoted out of context, or dismissed because it dates to previous malpractice crises. The only thing physicians and lawyers agree on is that malpractice insurers are price-gouging.

Physicians insist caps on noneconomic damages will cure the malpractice crisis. Lawyers insist caps are unfair and discriminate against women and the elderly. Some states will adopt caps, and others will not. When premiums decline, physicians in the states that adopted caps will claim that caps are responsible. Lawyers in states that didn't adopt caps will claim the same thing. As premiums decline, the debate will die down and the combatants will demobilize - only to begin the process again at the next opportunity.

What do we have to show for all this effort? Thirty-one states have a cap on noneconomic damages or total damages, or both. The rest probably won't adopt a cap voluntarily, and there is no prospect of a federal cap as long as Democrats control Congress.

A more fundamental problem is that damages caps don't do much to improve the quality of care that is being delivered. There is plenty of evidence that the quality of American health care isn't what it should be - but providers receive the benefits of a damages cap whether they have made great effort or no effort to improve the quality of services they are providing.

If we want to actually improve the quality of American health care and help ensure that we obtain value for the roughly $2.5 trillion per year we are spending, we should take five concrete steps.

First, if caps are politically inevitable, we should use them to encourage providers to improve the quality of care they provide. One obvious strategy is to reward providers for error reporting and punish them for hiding mistakes.

When a provider reports an error within a specified time of its occurrence, they should receive the protection of a limit on noneconomic damages. When a provider fails to report an error in a timely manner, noneconomic damages should be enhanced. One could use a similar strategy to reward providers who improve their performance on certain defined quality benchmarks. A second (and lower) cap on noneconomic damages would help ensure that error reports are used to improve quality, instead of being filed away. …

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How Should Medical Malpractice Litigation Be Dealt with in U.S. Health Care Reform?
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