What hope is there for meaningful tort reform to stop another malpractice crisis?
The hope is real, but the window of opportunity is small.
Common Good proposal
Another approach is advocated by Common Good, a bipartisan legal reform coalition. This organization has funding from the RWJ Foundation to work with researchers from the Harvard School of Public Health to investigate the creation of special health courts to hear malpractice cases.11 Their ideas are incorporated into the Fair and Reliable Medical Justice Act introduced as S.1337 by Senators Mike Enzi (R-WY) Max Baucus (D-MT).11
How it would work. Health courts would have full-time judges, neutral medical experts, faster proceedings with legal fees held to 20%, and rulings that could be appealed to a new Medical Appellate Court. Like other administrative courts that handle tax disputes, workmen’s comp, and vaccine injury, there would be no juries. Judges would issue written rulings and establish legal precedents. Once a mistake was verified, recovery would be automatic. Patients would be reimbursed for all their medical expenses and lost income plus a fixed sum that would be determined from an expert derived schedule addressing specific types of injuries.
Strengths and weaknesses. This proposal has the support of a wide array of national medical and legal leaders but not any medical associations. It attempts to address some of the most egregious parts of the current system—the time it takes to get claims resolved, the many errors that go uncompensated, and the diversion of so many dollars to overhead and legal fees rather than to patients. On the other hand, the plan does not provide firm caps, which may make the AMA and other professional associations skeptical. And the proposed health courts would rely on select medical experts and judges, a system likely to be strongly opposed by trial lawyers and some consumer groups. It also does not directly address the prevention of patient errors.
Those who fail to learn from history…
The current malpractice crisis may be abating, leaving physicians with higher malpractice premiums but some state tort reforms. History, however, suggests that the insurance cycle will eventually lead to another crisis. There may be a window of opportunity now to come up with a completely different system to address the goals and problems with our current system, but it is likely to be a small window. Capitalizing on it will require a willingness for both sides in the current stand-off to get past their own self-interests in order to come up with something better for all.
CORRESPONDENCE
Eric A. Henley, MD, MPH, Department of Family and Community Medicine, University of Illinois College of Medicine at Rockford, 1601 Parkview Avenue, Rockford, IL 61107-1897. E-mail: ehenley@uic.edu
