COMMENTARY

Goodbye to the $250,000 Malpractice Cap?; More

Wayne J. Guglielmo, MA

Disclosures

March 19, 2014

In This Article

Safety From Malpractice Suits by Following National Standards of Care?

Whatever happens in the Sunshine State, the debate over caps is sure to continue, despite the belief by some experts that "we've been barking up the wrong tree on malpractice reform."[2] One such expert is Peter R. Orszag, former director of the Obama White House's Office of Management and Budget and currently a top-level executive at Citigroup.

In a February 25 posting for Bloomberg View, where he's a columnist, Orszag argues that the debate over caps does little to address what he and others see as the "core problem" with the medical liability system: the fact that courts use the standard of customary practice -- or, simply put, what doctors typically do -- to evaluate physicians' actions. The trouble, says Orszag, is that this standard, particularly when based on local medical practice, "might not reflect the best medical science."

To support his argument, the former government official cites recent healthcare research on local vs customary standards. In the research, investigators found that states that shifted from local customary practices to national ones -- which are more likely to reflect current medical thinking -- "experienced substantial reductions in mortality rates, avoidable hospitalizations, and adverse events, relative to other states."

If this is truly the case, says Orszag, then it makes sense both to encourage the use of such national evidence-based protocols -- the increasing use of clinical decision-support software makes this feasible -- and to provide a "safe harbor" for doctors who follow them. Says Orszag, "If doctors knew that they would be protected from liability if they followed the clinical-decision guidelines (unless they had a good reason not to) and that it would be easy for them to prove such compliance, the safe harbor might have an even bigger effect on their behavior" than has been predicted by recent research. One likely change in behavior, it's safe to assume, would be a reduction in the practice of defensive medicine.

In his response to the Orszag column, in the Huffington Post, liability reform proponent Philip K. Howard, author of The Death of Common Sense (among other books), agrees with the safe harbor idea -- but only if it is paired with "an expert health court that doctors trust."[3] Such a court would decide, first, what treatments qualify for a safe harbor and, second, what types of cases do. In regard to the latter, says Howard, "even if a case does not fit within the safe harbor, doctors will be able to trust that an expert health court will strive to decide in accord with best practices."

Lawyers Refuse Malpractice Suits That Won't Recover Enough $$

A surprising number of injured patients never get their day in court, not because their malpractice case isn't strong but because it promises a less-than-blockbuster payoff. That's the main point of an article published in January by ProPublica, a nonprofit corporation focused on producing what it terms "investigative journalism in the public interest."[4]

The article focuses on Vermont attorney Ernie Ciccotelli, who in 2006 suffered complications after donating a kidney to his brother at Beth Israel Deaconess Hospital, in Boston. After months of treatment and disability that "nearly ruined his fledgling legal practice," Ciccotelli searched for an attorney to assist him in filing a medical malpractice suit against the hospital. He believed his case was a slam-dunk and therefore attractive to any plaintiff's lawyer looking for a sure win.

But one attorney after another turned him down because, as one finally explained to him, "You can win, but it won't be enough money to be worth it." And given the economics of initiating a malpractice lawsuit, Ciccotelli was in fact a bad risk: At this stage of his career, his income was low, so that whatever economic damages were awarded to him wouldn't amount to much; the hospital had performed his repair surgeries for free, thereby minimizing his medical expenses; and any of his lingering impairments weren't likely to jeopardize his earning potential, thus limiting any possible award for loss of future income. Set against the potentially high costs of suing the hospital -- costs that could easily exceed any damages Ciccotelli could hope to collect --the attorneys "took a pass."

Ciccotelli's experience isn't uncommon. In the ProPublica article, the authors cited a 2013 study by a professor at the Emory University School of Law that found that "95 percent of patients who seek an attorney for harm suffered during medical treatment will be shut out of the legal system, primarily for economic reasons." If potential damages were less than $250,000, the study noted, most attorneys wouldn't accept even a clearly winnable case; if the case was especially problematic, with no clear-cut victory expected, the typical threshold was $500,000.[5]

In their effort to lessen their liability exposure while treating patients more humanely, some hospitals, such as the University of Michigan Health System, have adopted a more transparent process after a medical injury. This process involves a quick admission of error, followed by an apology "and sometimes even compensation."[4]

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