COMMENTARY

Movement Toward a No-Fault Liability System; More...

Wayne J. Guglielmo, MA

Disclosures

September 13, 2012

In This Article

A Different -- and Fairer -- Malpractice Liability System? Florida Tries to Make It Happen

Few issues have sparked more debate in Florida recently than a legislative proposal to fix the current medical malpractice liability system. In an August 24 op-ed posted on gainesville.com, for instance, ophthalmologist and Florida Medical Association delegate J. James Rowsey, MD, argues the case for replacing the "broken" system with one that resembles the no-fault process now used to compensate injured workers.[1]

"This legislative session, Florida will have the opportunity to adopt a solution that works for patients, physicians, and our economy: A Patients' Compensation System [PCS]," Dr. Rowsey writes. The hallmark of the new system, he continues, is "the patient need for both prompt recognition of a medical injury and prompt payment."

Unlike the current adversarial process, however, the PCS wouldn't reward patients at the expense of physicians: Instead, says Rowsey, doctors would not be blamed for the injury and would have the opportunity to "recognize and learn from [their] mistakes without being sued." And because they would be freed from the uncertainties of the blame game, they would be less likely to practice defensive medicine, which, says Rowsey, is not only terribly costly but offers "the false security of protection."

The no-fault PCS would be funded by healthcare providers with money that would otherwise go to insurers in the form of premiums. It would follow a 5-step process:

  1. A patient advocate assists an injured patient in filing a claim.

  2. The medical review department researches the facts behind the claim.

  3. An independent medical review panel examines the merits of the claim.

  4. Using an approved fee schedule for determining both economic and noneconomic awards, the compensation department recommends a payment.

  5. In cases where either the patient or provider disputes the medical ruling or fact-finding process, an administrative law judge determines whether the law has been fairly applied and the process followed accurately.

All claims submitted to the system would be referred on a confidential basis to a quality improvement department, which would be charged with using the information and data gathered in order to improve patient safety.

Would a Patient Compensation System Work?

In July, Patients for Fair Compensation, an advocacy group, released the results of a study it commissioned that showed the potential benefits of replacing the current liability system with the proposed one. As the study's executive summary stated, "If an effective no-fault PCS would be enacted, and assuming a slow change in physicians' defensive medicine behavior, the first-year savings for payors could be $1.5 billion; that number may grow to annual savings exceeding $16 billion when physicians have reduced their defensive medicine practices significantly."[2]

Independent analysts have also focused on the benefits of a no-fault patient compensation system, in Florida and beyond. In their 2011 examination of 3 no-fault systems in other countries,[3] for instance, researcher Michelle Mello and her colleagues concluded that the benefits far outweighed the drawbacks but offered advice on its implementation:

"Because many Americans continue to believe that the tort system creates valuable incentives for safe, high-quality care, it would be politically advantageous to improve systems of physician discipline in the United States prior to pursuing implementation of an administrative compensation system. Although there is scant evidence that tort liability has had a positive deterrent effect, key stakeholders are more likely to accept a no-fault system if there are other means of identifying incompetent providers and holding clinicians accountable for poor-quality care."[3]

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