Experts Advocate Tort Reforms That Go Beyond Damage Caps


ALEXANDRIA, VA. — Traditional tort reform measures like damage caps won't address some of the fundamental problems with the medical liability system, experts said at a meeting on patient safety and medical liability sponsored by the Joint Commission on Accreditation of Healthcare Organizations.

To deal with the current malpractice situation, the medical community needs to address the reasons why people sue—injuries, unmet expenses, and anger, said Lucian L. Leape, M.D., of the department of health policy and management at the Harvard School of Public Health, Boston.

“The main reason most people sue is because they are angry at the physician,” Dr. Leape said. But the current system and the most commonly proposed reforms, such as damage caps, don't address the need to increase disclosure of errors to patients or incentivize physicians to offer apologies.

In the current tort system, filing a lawsuit is often the only way that patients feel they can get information about what happened to them or impose a penalty on the physician, said Michelle Mello, Ph.D., also of the department of health policy and management at the Harvard School of Public Health. But this process often fails to secure an admission of responsibility or an apology, she said.

Traditional reforms such as caps would undercompensate seriously injured patients and increase administrative costs, Dr. Mello said. But they would not help deter medical malpractice, she said.

Damage caps also fail to address the poor correlation between medical injury and malpractice claims, she said. Instead of focusing on caps, the medical community needs to consider an administrative compensation system to replace torts.

The malpractice system is “blocking efforts at patient safety,” said Troyen A. Brennan, M.D., professor of medicine at Harvard Medical School, Boston, and professor of law and public health at the Harvard School of Public Health.

A new system should separate compensation for injuries from deterrence, he said. To do that, liability for negligence has to be eliminated, and reporting has to be made based on patient injury.

Physicians have to realize that reporting patient injury is part of their professional responsibility. Currently, some physicians do not disclose errors or injuries. It's a rational economic response to their rising premiums and fear of being sued, he said, but it's not an ethical response.