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Medical Malpractice Reform

July 28, 2010

NOTE: The following is my opinion based upon years of experience with a very, very problematic medical malpractice system. You may not agree with my opinion or assessment, though I have a well-rounded perspective as a patient, physician, employer, purchaser of health insurance, medical expert, and victim of frivolous lawsuits; thus I am in a better position than most to have what I call an “informed opinion”—-an opinion based on extensive reading and direct experience with the system as it exists. If you wish to express a differing viewpoint, please do so understanding my expectation that your opinion also be “informed”, i.e. based upon extensive experience or study. Uninformed viewpoints are not helpful to the discussion.

Medical malpractice insurance costs a fortune for each and every physician practice, and the system in which it works—-the courtroom—– with plaintiffs and defendants flanked by expensive lawyers is rarely a place of real justice for anyone. The process is incredibly expensive, stressful, and lengthy; if there is real negligence or malpractice and the jury determines damages, a big chunk of the payment goes to the plaintiff attorney rather than the victim who really needs the payment for their damages. The process for the defendant physician is fraught with tremendous emotional distress, loss of sleep, and inability to focus on work, i.e. his/her other patients who need his/her undivided attention. The attorneys consider it nothing but “business” and go home at the end of the day as if it’s all just part of the days’ work; the physician being sued goes home to exhaustion and severe mental distress and just wants to quit.

In cases where real malpractice or negligence has occurred, the physician wants a quick resolution to the matter on behalf of the patient and himself; it does neither party any good to have a battle over the situation. The only thing that needs to occur is a determination of damages and a payment. The physician meanwhile must go through a process of professional re-evaluation, peer review of his/her work, and go through an evaluation of his/her work with the medical board for recommendations regarding additional education, proctoring, or a change in practice—-more than enough re-direction to keep him/her busy for a very long time. If a real problem exists with the doctor, it will be identified and dealt with.

So…..what alternative is there? It seems to me there is a very simple alternative that makes good sense. Eliminate the current system. Set up a mediation/case analysis system with members variously made up of legal advisors, medical advisors, accountants, and so forth to analyze malpractice claims. Create a patient injury fund in the state or region. The fund is sustained by a small payment made by each patient every time they see a doctor for a new problem, for example, one dollar, though probably less. Basically the patient is paying a minuscule “premium” to insure himself/herself against an injury or bad outcome from treatment. The fee would be paid only for visits for a new problem—-follow up visits for the same problem would not have this tiny fee. The patient would also pay a small premium at hospital visits for inpatient or outpatient treatment as well. The revenues from the millions of visits per year would go to the state patient injury fund, from which disbursements would be made on a case by case basis dependent upon the findings for each case analysis.

What does this plan do? It pays the victim, not the attorneys. It frees up the court system. It assigns premiums to the individuals who are insuring their own body from injury rather than to the physicians, drastically reducing the office overhead expenses of the physicians and decreasing health care costs. (Having physicians pay malpractice premiums is ridiculous; insuring the patient against injury makes more sense than insuring the physician against malpractice lawsuits, and it would be drastically less expensive to the health care system.) It reduces the stress to all patients to know that they are insured against injury and won’t have to go through the horrible experience of a lawsuit to file a claim. It reduces the use of unnecessary tests since physicians will not feel constantly threatened by patients and lawyers. Lastly, it would promote honesty and a willingness to carefully and fully evaluate cases of mismanagement; imposing financial hardship on physicians and physician practices as part of the “punishment” for malpractice is not productive: it is the rare case indeed when a physician is truly grossly negligent or acting with malice or intent to do harm. Most injuries, accidents, or adverse side effects occur in situations where a good physician is doing their regular routine work and something goes awry and a variety of factors result in an adverse outcome, hardly a scenario that should result a year or two later in all parties battling it out in a court of law.

I’ve seen this issue from nearly all sides and have had many years to think about it. I’ve sat in the courtroom as a defendant for a malpractice claim, I’ve paid gigantic malpractice premiums which prevent my practice from growing and expanding to help those in need and keep jobs in the area, I’ve acted as an expert on behalf of physicians inappropriately sued for malpractice, and I’ve advised malpractice carriers not to settle frivolous suits and to settle claims when a physician inadvertently made an error resulting in harm to a patient. I’ve hated it all! None of it works properly for the patient or physician, and it is a horrible, stinking, costly process for everyone. The only ones who seem to enjoy it are the trial lawyers; they are the only winners at the end of the day, and frankly that’s a loss for everyone.

From → Opinion

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