Bill suggests new ways to handle malpractice cases

AMA says the focus still needs to be on a $250,000 noneconomic damages cap.

By Tanya Albert, amednews staff. Sept. 1, 2003.

Consider the idea of telling a patient upfront about a mistake and offering him or her compensation without any threat of a lawsuit.

Or how about a no-fault system that would establish classes of avoidable injuries and set the amount of money an injured patient would receive, cutting out the courtroom?

Or maybe even a special court where judges with health care expertise would be the ones to make judgments about standards of care?

Special courts exist for such complicated issues as taxes, substance abuse and bankruptcy. Now one senator says its time for the country to experiment with how the courts handle medical malpractice cases.

Sen. Mike Enzi (R, Wyo.) recently introduced a bill that calls for the Dept. of Health and Human Services to fund three model programs aimed at fundamentally changing how medical malpractice claims are adjudicated. The new approaches would be tried in up to seven states.

"With all the flaws in our current medical litigation system, perhaps we should consider special courts for the complex and emotional issue of medical malpractice," Enzi said when he introduced the bill, the Reliable Medical Justice Act. "Perhaps we could live with this flawed system if litigation served to improve quality or safety, but it doesn't."

Enzi based his measure on recommendations from a November 2002 report by the Institute of Medicine titled "Fostering Rapid Advances in Health Care: Learning from System Demonstrations."

One proposal in the legislation would allow the states to study early disclosure and compensation. Under this system, a state would give physicians lawsuit immunity if they -- in a timely manner -- offered compensation to patients for the net economic losses they sustained as a result of the injury and a scheduled payment for pain and suffering.

"This could give a health care provider who makes an honest mistake the chance to make amends financially with a patient, without the provider fearing that their honesty would land them in a lawsuit," Enzi said.

It also attempts to get cases that shouldn't be litigated out of the system early, said Nancy Udell, director of policy and general counsel for Common Good, an organization that is working to reform the country's lawsuit culture.

If a physician chooses not to offer compensation, the patient could still go to court.

Creating a "class" system

A second approach in the bill would allow states to test administrative determination of compensation. The state would determine what injuries are avoidable and break them into classes. The classes would be established based on the severity of the disability resulting from the injury, the cause of the injury and the length of time the patient would be affected by the injury.

The state would then create an administrative board to resolve patients' claims. Representatives from relevant state licensing boards, patient advocacy group members, physicians and lawyers in relevant practice areas would sit on the board.

The system could be fault-based or no-fault. The administrative board would be responsible for developing a schedule of compensation that would include payment for the patient's net economic loss and pain and suffering.

"A scientifically rigorous process of identifying preventable injuries and setting appropriate compensation would be preferable to the randomness of the current system," Enzi said.

A third proposal in the bill would allow states to establish special health care courts. Judges in these courts would have expertise in health care issues. They would make binding rulings on causation, compensation, standards of care and related issues.

Udell said that a special health care court could go a long way toward solving the current problems. For example, she said, if a physician is sued now because of the decision to give a patient an aspirin instead of a CT scan, the doctor has no idea how a jury might decide.

"I could get sued for giving aspirin and lose in one court and then win in another court the next day," Udell said. "[In a health care court] the standard of care would be determined by judges with medical expertise."

While the AMA agrees that long-term solutions are needed in the medical liability system, the Association says the priority now needs to be on a short-term fix -- the $250,000 cap on noneconomic damages that has passed in the House, but still has not gained Senate approval.

"The models in Sen. Enzi's bill are interesting and the AMA has discussed models in the past, but we don't have time to wait for the demonstration models to happen," AMA President Donald J. Palmisano, MD, said. "We can't do a study when people are at risk of losing doctors. We don't want anyone to die unnecessarily or be without his or her physician."

Lawyers say current system is fine

The Assn. of Trial Lawyers of America, which does not support any noneconomic damage caps, opposes the idea of changing the current tort system, said spokesman Carlton Carl.

Trial lawyers say the current problems have been caused by liability insurance companies experiencing falling investment income combined with the fact that these insurers charged too little in premiums in the 1990s.

"This is just another back-door effort to take away the rights of American families," Carl said.

Enzi's bill was referred to the Senate Health, Education, Labor and Pensions Committee.

ADDITIONAL INFORMATION:

Weblink

Thomas, the federal legislative information service, for bill summary, status and full text of the Reliable Medical Justice Act (S 1518) (thomas.loc.gov)

"Fostering Rapid Advances in Health Care: Learning from System Demonstrations," Institute of Medicine (www.nap.edu/books/0309087074/html)