Our screwed-up malpractice system. Whose fault is that? Let's try 'nobody'.

A few years ago, a friend of mine gave birth to a daughter, her second child. A few weeks into the child's life, it became apparent she was suffering from cerebral palsy. Not long after, my friend, whom I'll call Carol, bumped into her ob/gyn doctor on the street and told him about her daughter's diagnosis. In a good world, the moral and legal context of such a conversation would encourage the doctor to express sympathy. But the doctor, looking stricken, and clearly terrified about being sued, immediately said, "Well I hope you don't think it was because of anything I did." Carol, who was sharing information about her baby -- and, frankly, hoping to hear a sympathetic response to the person who'd helped her bring that and a previous child into the world -- felt cut to the quick, and I imagine the doctor didn't feel too good about the exchange, either. Yet it's precisely the sort of relationship the current malpractice system encourages when things go badly.

This corrosion of the doctor-patient relationship is just one of many reasons to change our present malpractice system. Unfortunately, none of the tweaks being considered in the healthcare reform debate address it -- or any of the malpractice system's other central problems. The focus has been on the extra costs costs created by high malpractice insurance premiums and expensive, unnecessary defensive medicine. But this debate, as David Leonhardt notes in a recent Times post, this debate isn't really getting us anywhere. It exaggerates the scale of the problem, overlooks many of its central dynamics -- and never drifts anywhere near a sensible fix. And while Obama's proposed tweaks would help a bit, but wouldn't fix the fundamentals.

'Twas much the same four years ago, amid what was then the third U.S. "malpractice crisis" of rising premiums. At that point I wrote in Slate about a 'no-fault' fix that has great promise. But even now, with the wonkish Obama administration in office, this isn't getting much play, perhaps because it's from Europe. Instead we get the usual rumble and noise. Then as now, I wrote, this debate "amounts to bickering about how to fix a machine of spectacularly bad design."

Our current system purportedly seeks to a) compensate those injured by medical care, and b) improve health care by discouraging error.

It falls well short of both goals. Only 1 of 8 victims of avoidable medical injury sue, and only 1 of 15--about 7 percent--receive any compensation. [More recent studies suggest that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim. Another study -- h/t Timothy Noah -- found that "doctors injured 4 percent of their patients, and only 4 percent of them bothered to sue."]

The threat of suit indeed terrifies doctors. But terror doesn't reduce mistakes.

Studies have found that doctors in countries where they can't get sued (such as New Zealand) do not err more frequently or egregiously than they do here. The fear of suit actually encourages doctors and hospitals to obscure mundane but serious problems such as poor systems for communicating and confirming drug orders. Finally, the present system subjects caregivers to sudden, unpredictable rises in malpractice premiums, which lately have doubled and even tripled in some states. According to the Congressional Budget Office report, these spikes stem less from increasing malpractice claims than from business cycles in the insurance industry. (here to read more.)

So we have a system that helps very few of the injured, does nothing to reduce the honest mistakes that account for most injuries, and discourage doctors and hospitals from acknowledging their mistakes and learning from them.

A no-fault system would address all these shortcomings.

A no-fault system would compensate those who have been harmed without assigning blame--a process easier for patients and less traumatic for doctors. In our present system, to win restitution, a harmed patient must prove not just that a doctor or hospital erred, but that the error was caused by neglect or incompetence so severe it amounts to a breach of the doctor's or hospital's legal duty of care.... In a no-fault system, the patient need prove only the avoidable error. The question of whether the doctor was negligent or incompetent--the accusatory crux of our present system, and the part that so humiliates and infuriates doctors--would not pertain. A separate disciplinary agency or panel would handle cases of gross negligence, incompetence, or breach of duty.

Sweden, Denmark, Finland, and New Zealand have used no-fault malpractice systems for 20 to 30 years, with admittedly mixed results. Yet several academics, most notably Harvard's David Studdert and Troyen Brennan, have studied these countries' systems and concluded that a U.S. system modeled on that of Sweden could more consistently compensate victims of avoidable mishaps and more effectively reduce error and incompetence--all for the same cost. No-fault would also make doctors and patients allies rather than adversaries when something goes awry.

In Sweden, when a patient suffers avoidable injury, whether through gross negligence, such as a botched surgery, or through a more understandable but avoidable mistake, such as a misdiagnosis or medication error, the patient--usually with help from the doctor's office--fills out a form requesting compensation. That request, along with relevant doctor and hospital staff reports, gets reviewed by an adjuster who decides whether the injury might have been avoided had treatment differed. If the claim passes that hurdle, a panel of legal and medical experts considers it. If the panel decides the injury rose from avoidable error, the patient is compensated. The award varies according to the nature of injury, the degree and duration of the patient's disability, the expenses incurred, and other factors; it may also include compensation for pain and suffering. The entire process usually takes less than six months. Patients who feel unfairly denied or undercompensated can appeal, but they cannot sue. The system is funded by premiums charged to regional organizations of medical facilities and physicians. These premiums are substantially lower and more stable than malpractice premiums in a tort system.

One of the nicest things about no-fault is that it decreases acrimony and antipathy between doctors and patients. By openly acknowledging that sometimes things don't go well, it encourages a cooperative, compensatory response to error and injury, in which doctor and patient continue to work together toward better patient health. This would improve greatly on the fear that now distances doctor from patient when anything goes amiss.

Would it cut costs? It would almost certainly reduce the billions spend on defensive medicine. On the other hand, it would generate more claims than our present system -- indeed, compensating more of the injured is part of the point.

The system would save money, however, by eliminating punitive damages and legal costs. The legal and administrative costs of our present system (lawyers' fees, court costs, paid experts) account for 60 percent of the estimated $24 billion the malpractice system consumes each year. A no-fault system would cut that to 20 percent or 30 percent, roughly doubling the money available for the injured.

Would those savings cover the increase in claims? That would depend on eligibility thresholds. If the United States used Sweden's eligibility guidelines, which cover any missed work or extra hospitalization, it would cause the total amount we spend on medical injury to rise 30 percent to 100 percent, increasing total health-care costs between 1 percent and 2 percent. Studdert and Brennan, however, calculate that a no-fault system using a qualification threshold of an extra 10 days of hospitalization and/or 30 days of missed work would create costs roughly equal to those of our present system. When they applied these standards to all medical injuries and malpractice suits settled in Colorado and Utah in 1992, they indeed found more people would be compensated and at a lower cost. (Click here to read more about their findings.)

Far as I know, none of the current healthcare reform proposals steer us in this direction. It's too bad, for this is a good opportunity to help make a no-fault system possible. This would have to be done at the state level. (My article discusses proposed systems for doing so.) But a healthcare reform bill could do a lot to make it easier for states to do that.

Link: A FAULTLESS FIX FOR MALPRACTICE? A Swedish model says Ja

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In a good world, the moral and legal context of such a conversation would encourage the doctor to express sympathy. But the doctor, looking stricken, and clearly terrified about being sued, immediately said, "Well I hope you don't think it was because of anything I did."

I'm reminded of an exchange my mother had with the doctor who was overseeing my father's care while he was hospitalized. He'd been in the hospital a couple of weeks at that point, and we were still dealing with the possibility that he might die or be severely disabled. The discussion went something like this:

Mom: I need some sense of whether he's going to be like this - physically and mentally disabled - if he survives, because if that's the case, I need to start working with my lawyer.

Doctor: (panicked expression) Um, why would you need to do that?

Mom: (confused, then realizes what she's just said, and to whom) Because if he's going to remain disabled, I need to make sure that my will provides for his care if I die before he does.

The thing is, it hadn't even occurred to my mother that she might sue anyone. It was apparent from the start that my father's illness was no one's fault (except perhaps his own, because he'd dragged his feet on seeking treatment).

The problem with comparing other developed countries' malpractice systems with that in the US is that there's a very fundamental philosophical difference between our system and everyone else's. As Martin points out, the big concern of people who believe they've been subject to medical error is how they'll deal with the financial costs that result. The underlying assumption in the US is that coming up with the money is a personal responsibility, and the purpose of a malpractice system is to determine whether the responsible person is the patient (the case by default) or the doctor.

In the rest of the developed world, though, making that money available to the patient is seen as a social responsibility. Therefore, there's no need to assign blame; the relative resources (wealth) of the patient and the doctor have no bearing on whether the patient's needs get met.

As a patient, I would not want this system, because it would require me to waive my right to be compensated for any damages I am forced to suffer at the hands of a bad doctor, be they for economic damages, medical expenses, and especially pain & suffering and punitive damages. Why should I not be compensated for all the pain I have to go through because some hack with an M.D. can't meet the standard of care? Anything less simply reinforces the misguided notion that doctors have that most of these cases are not caused by doctor negligence and malfeasance, but are, rather, patients suing over sadly unavoidable complications.

Rather than a problem, the "accusatory crux" and "trauma" should be a tool used by the profession to identify and kick out the bad doctors, instead of lamenting the poor, poor, humiliated and infuriated doctors. Indeed, any doctor that, for example, leaves a medical instrument in a patient or removes the wrong leg or misdiagnoses a simple illness, should feel humilated and traumatized and should be drummed out of the profession.

I think that any system that does not first and foremost deal with the problem of incompetant physicians is doomed to fail. Do we really need physicians who commit, say, more than 4 or 5 acts of negligence in thier careers? Until doctors put away the easily brused egos and start insisting that multiple acts of negligence is grounds for yanking licenses, there will be no solution to this problem.

The problem, as I see it, is an institutional hesitation by doctors of kicking the bad ones out of the profession, which is just one example of the institutional acceptance of negligence and unjustified risk which permiates in the profession. Any profession which has or continues to ignore the obvious danger of such simple and dangerous issues as illegible handwriting on drug prescriptions and physicians working 36-hour shifts is a profession which has an unhealthy level of acceptance for damage-causing behavior.

By Grant Canyon (not verified) on 06 Oct 2009 #permalink

Grant, the change would not remove compensation, just change the process for allocating it. It would in fact make it easier to receive, because you don't have to prove that a specific person is to blame, only that you suffered avoidably.
As for the removal of incompetent doctors, there is no reason why that should not be possible. The hospital or health trust would still review cases where there had been a problem, and would still not wish to employ the negligent or the incompetent. A no-fault system may even help with this by making people more willing to admit and face up to errors, and find some way to prevent them in future, rather than trying to hide them.


As presented, it notes that injured patients "may" recieve compensation for pain and suffering, which says to me that most or some won't (although I admit this is ambiguous language.) Also, it notes that victims of really egregious conduct would not be subject to punitive damages.

Also, I would not want these decisions out of the hands of a jury of my peers, in favor of specialized panels which would include doctors who would not like to upset the "white coat mafia" and find against fellow doctors except in the most egregious cases.

Also, I don't see hospitals TODAY instituting rigorous programs to get rid of bad docs, when it can affect their bottom line. How is this new system going to be a greater incentive? I don't see it. If anything, the hosptials would have less reason to do so, because it won't affect their bottom line.

By Grant Canyon (not verified) on 06 Oct 2009 #permalink

Cut the link at "money goes from the doctor to the patient". That is, make the doctors immune to *civil* suits.

Grossly negligent medical professionals should face *criminal* charges, laid by the state (the DA in the US, I belive), punitive damages going to the court, or to a charity, or to general revenue, or wherever. And hell yes, criminal responsibility should go up the chain - to institutions and collegues that covered up previous incompetence.

*At the same time*, a bucket of money made available to victims of malpractise. Mind you - with decent public health care, it's much of a muchness. After all, the main reason for wanting money is to be able to afford the medical bills *resulting* from the malpractise itself.

A no fault system might compensate more victims, but it would do nothing to solve the real problem -- malpractice itself.

National Practitioner Data Bank data shows that in most states about 2 percent of physicians, many of whom have multiple payments in their records, are responsible for over half of all the dollars paid out for malpractice. Yet these 2 percent often have had no action taken by licensing boards or hospital peer reviewers to revoke their licenses or restrict their practices.

A no fault system, unless very carefully designed, could make this even worse. We need to ensure that the public is protected against malpractice as well as compensated when it occurs. The fact is that there is fault and it needs to be assigned even with a no fault system.

Both the public and the vast majority of physicians who don't commit malpractice need to demand effective action to revoke the licenses or restrict the practices of the few who repeatedly commit malpractice regardless of how injured patients or their survivors are compensated.

By Woodside Park Bob (not verified) on 07 Oct 2009 #permalink

A no-fault system is meant to deal with the great majority of medical errors, which are just that -- errors, which happen, rather than gross negligence etc. Right now, most errors get uncompensated (and unacknowledged by the doctors, usually, for fear of suits), because only the grossest errors and negligence are ripe for suits. A no-fault system is designed to enable smooth, amicable response and compensation for such errors.

This is NOT incompatible with the idea of disciplining those doctors who act with gross or repeated incompetence, negligence, etc. There's no reason you can't have a separate track for those. And a no-fault system would arguably make it easier to expose them, since the nature of most errors being made more apparent, and with a system to deal with them openly in place, the grosser errors would be more evident, and the worst practitioners -- the truly negligent or incompetent -- would be more obvious.

It's a related but separate problem. The system now essentially provides the means only to address the very worst cases and practitioners. By doing so it leaves untended the many preventable errors/oversights that account for most preventable bad outcomes. While meantime running up costs via premiums and defensive medicine -- and further poisoning already besieged relationships between doctors and patients.

Think of cars and auto insurance. Our no-fault insurance system makes it simple for everyone to be made whole after the sorts of accidents that result from the errors that most drivers make -- a moment's inattention, etc. You don't have to sue and prove someone horrid to get your back end fixed because someone glanced down for a moment. Yet you can still file criminal charges if someone runs you off the road doing 90, and truly negligent or reckless driving brings criminal charges -- and serious penalties if someone is harmed. A no-fault medical error/malpractice system could work much the same.