Malpractice in America: Is Anything Getting Better?

Anne L. Finger, MA


January 06, 2014

In This Article

More Positive Malpractice Developments

"Safe harbor" laws. These laws remove liability for physicians engaged in best practices. Endorsed by 2 Institute of Medicine committees, these laws have been repealed in Maine, Florida, and Minnesota.[5]

"They are built on a false premise," states Anderson, who says these are really early offer and compensation laws. "You are safe only as long as you admit guilt and make a payment." With the high percentage of unfounded claims, "That would mean 82% of the time, doctors would be making payments for nothing."

Cooling-off period. In Washington state, a law prevents individuals from filing suit until 90 days after notifying the healthcare provider that they intend to file suit. The cooling-off period reportedly allows discussions to begin about the bad outcomes sooner and reduces the likelihood of litigation. At least 10 other states and the District of Columbia have a cooling-off period[9]; in Massachusetts, it's part of a reform package that includes disclosure, apology, and offer.[10]

Schedule of payments. "Periodic payments are very helpful," says Anderson. "If a plaintiff receives, say, $10 million, instead of a lump sum, the money is dispersed over the patient's lifetime. That makes it more feasible for the system to accommodate large settlements and is better for the patient, who is secure in the knowledge that the money will be there when needed." Thirty-one states have some form of this rule.[4]

In addition to the above approaches, two procedural reforms under discussion are enterprise liability/enterprise insurance, which would move liability from physicians to hospitals (stressing system errors rather than individual ones), and no-fault compensation, which would replace litigation for birth-related damage with actions by administrative commissions. Robert D. Leflar, JD, MPH, writing in Chest, described these broad approaches as "worthy of attention."

"Sorry" Laws, Early Offer and Compensation, and the Michigan Model

One promising response to medical liability involves the University of Michigan Health System (UMHS) approach, which was created with the belief that most tort reforms "do nothing to address the primary reasons patients sue."[11] The UMHS approach is effective, says Matray, in part because it removes the adversarial nature. "They [UMHS] polled a lot of med-mal plaintiffs who said, 'Nobody seemed to care.'"

According to Sacopulos, "Some argue that laws based on this model are effective even when the doctor isn't protected. If you look at why people file suits, they feel they didn't get enough information, and they want to make sure it doesn't happen again -- even before they talk about dollars."

In the UMHS, a plaintiff must provide the potential defendants with the claims, in writing, 182 days before filing suit. During that period, the defendant can investigate the claims and contact the patient or family, and the patient can consider whether or not to continue the legal path. The system aims to "Compensate quickly and fairly when unreasonable medical care causes injury; Defend medically reasonable care vigorously; and Reduce patient injuries (and therefore claims) by learning from patients' experiences."[11]

Doctors, patients, and lawyers hold "Open, honest, and robust discussions," and "Patients develop a thorough understanding of what happened before misconceptions and bogus information drive them to the courthouse." As a result, "litigation is relegated to the role it was meant to play: a last resort for resolving intransigent disputes."[11]

Anderson says of the UMHS model: "They have done a very nice job in this area. If it can be built more widely, it would be very helpful." He adds that expressing empathy is always the right thing to do, and this approach has the significant prospect of taking the venom out of lawsuits. But the devil is in the details: "Saying 'I'm sorry' is not the same as saying 'This is malpractice'; it shouldn't necessitate compensation."

Lincoln of Public Citizen also finds something positive in "sorry" laws: "The preliminary data out of Michigan looks encouraging." He adds that he doesn't think the patient should lose the right to use the information they've been given in litigation. "I think doctors are obligated to apologize anyway; they should admit things because it's their job."


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