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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.

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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.