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Alternative Proposed to Medical Malpractice Lawsuits

Posted by Jane Akre
Wednesday, October 21, 2009 12:03 PM EST
Category: Major Medical
Tags: Health Care Reform, Health Panels, Tort Reform, Caps, Center for Justice & Democracy

Health panels are being proposed as an alternative to medical malpractice litigation by the hospital association.  
Michael Skolnik 

Hospital Panels

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IMAGE SOURCE: Center for Justice & Democracy/ Victims of Medical Malpractice/ Michael Skolnik who died in 2001 from unnecessary brain surgery

The American Hospital Association has been shopping a new plan to lawmakers, trying to find alternatives to tort reform that prevents Americans from finding a remedy to medical malpractice in the courtroom.

A Health and Human Services hearing next week will seek funds for a pilot program. $25 million is to be set aside to find alternatives to malpractice litigation.

The latest plan takes cases of medical malpractice out of the courtroom and before a panel of experts, purportedly neutral, to sift through the facts of an alleged malpractice. The patient wouldn’t have to prove the negligence, only that the problem could have been avoided by following established guidelines.

It would then be up to the panel to offer compensation if the experts find a patient has been harmed by avoidable malpractice.

This idea is similar to the proposal of ”health courts” from the nonprofit group, Common Good, that advocates for changes in the legal system. Lawyer Philip Howard says that doctors would have an incentive to follow best practices guidelines, while doctors who do would be protected.

200,000 A Year

But the health panel plan does nothing to address injuries to patients, or discourage repeat offender doctors.

A recent Hearst newspaper investigative report finds nearly 200,000 Americans are killed every year from medical malpractice, either lack of treatment or medication errors, or hospital infections.

The victims of medical malpractice who receives an unfavorable dismissal from a panel, would have the option of appealing a decision to a higher-level panel, and ultimately a court, reports AP.

One problem - the Seventh Amendment guarantees Americans a right to a remedy through the court system.

Susan Steinman, policy director for the American Association for Justice says “We think that health courts take away the right to a jury trial.”

Hospital and doctor groups have long said that health care reform must include tort reform. While AAJ, which represents trial lawyers, has long advocated that health care reform must include insurance reform.

Doctors have long maintained that fear of being sued leads them to order additional and sometimes unneeded tests, while IB member Ben Glass suggests those doctors might be guilty of insurance fraud.

And a report on National Public Radio on health debate, takes another look at this polarizing argument. NPR finds that often it is the patient, who has done research on their condition or been influenced by direct-to-consumer advertising, that is demanding additional treatment or procedures and not defensive medicine.

Another alternative long sought by supporters of lawsuit reform, is slapping caps on jury awards in medical malpractice cases. But President Obama is not a supporter of hard limits on awards.

The Congressional Budget Office (CBO) recently concluded that curbing malpractice lawsuits would lower the federal deficit by $54 billion over the next decade.

The Center for Justice & Democracy, which advocates for protecting the civil justice system, finds that extreme tort reform measures would weaken the deterrent potential of the tort system. #


4 Comments

Anonymous User
Posted by Michael
Wednesday, October 21, 2009 1:26 PM EST

Medical malpractice reform is needed to control health care costs. As a physician I practice defensive medicine because I am forced to in the current system. I order tests that I do not think are needed and XRAYs just to "cover my a$$". If the general public is willing to accept a 1/200,000 chance (number just made up by me) that we will miss a rare diagnosis to save millions of dollars....AND the physicians would be protected legally from this we could save millions (if not billions) of dollars per year. If Obama wants to really save money so we can insure more people he will address medical malpractice reform. I doubt he will given the fact that he and his panel are mostly lawyers, but THIS IS NEEDED for the continued health of our nation.

Posted by John Hopkins
Wednesday, October 21, 2009 10:05 PM EST

If I am one of the patients in which you order tests that you "do not think are needed" and you find a condition early, that is treatable because you did not let it progress; then I think that is simply responsible medicine. Who gets to choose? Should patients simply accept that a physician's judgment call was wrong and, well, the physician missed it because he does not have to practice "defensive medicine" anymore?

It is always interesting to me when it is the loved one of a physician who is subjected to medical negligence during medical treatment, it is not a failure to perform an unnecessary test and tort reform is all of a sudden not a good thing.

The "tort" system discussed by Jane above has been tried in other countries, for example New Zealand, and it has not been demonstrated to be successful in any way.

Once again, I defy a tort reformer to show me a reliable, unbiased report that illustrates frivolous lawsuits are a problem in medical malpractice; that anyone except insurance companies win when victims have their rights taken away; or that healthcare providers deserve to be a special class of citizen.

There are not a great many guarantees in life, but I am confident that physicians who experience medical negligence harming someone they really love, there is no such thing as "defensive medicine".

Anonymous User
Posted by Jim O'Hare AIC AIS
Thursday, October 22, 2009 4:01 PM EST

If the cost of healthcare is cheap, nobody would care about defensive medicine. Pick one - good health or increasing shareholder wealth, Cant have both and that is the big elephant in the room. To show an example of how far apart this concept is.

Which would you like to see for a healthy society; a hospital full of patients or one that is empty? Now that depends if you want profit or health!

Healthcare costs 750 billion more than it should. The top 5 HC ceo's earn 600 million! A touch of honesty would be refreshing. Thank you Nixon/permanente for the HMO concept, turning HC from 6% of gdp in the 60's to 17% and rising.

Anonymous User
Posted by Laurie Schrader
Friday, October 23, 2009 11:55 AM EST

I understand that physicians are at the mercy of insurance companies; so are the American people. so why can't we focus on REMOVING the for-profit, greedy enterprises from the doctor/patient reltionship? Instead, physicians let their own greed speak.

In states where tort reform has been enacted, doctors have been BIG winners. Texas and Mississippi doctors saw immediate decreases in malpractice policy costs of around 42%. GREAT!

The problem? Costs weren't lowered for the consumer at all. In fact, each of those states has seen an increase in uninsured residents and consumer insurance rates that have risen 7 times faster than income. Compare that to Oregon, which saw consumer rates in the same time period raise "only" 4 times faster than income growth with no tort reform at all, and you have the problem.

Tort reform provides relief for hospitals and physisicians, but is proven NOT to positively affect consumer rates at all. And anytime a large special interest group wants to suspend or alter fundamental Consitutional rights based on their own narrow interests, we need to say "no".

The right has been really good at convincing Americans that government health insurance might lead to health care rationing. Time for the trial lawyers association to wage a campaign that lets Americans know that health courts absolutely WILL lead to rationing of justice. Who loses then?

Comments for this article are closed.

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