COMMENTARY

Finally: An End to Malpractice Litigation?

Jeffrey Segal, MD, JD

Disclosures

March 05, 2015

In This Article

A Sensible Alternative to Our Broken System?

As every physician knows, our tort system is broken. Various solutions have been suggested over the years, only to fade away. But now, a promising new system for patient compensation in cases of medical error is being proposed in two states: Georgia and Florida. It makes sense for doctors and patients alike, and for our healthcare system as a whole.

The bills would, if passed, transform the current medical tort system into an administrative system for redress. Georgia's—the Patient Compensation Act in Georgia, SB 86[1]—opens with the following game-changing text:

"Effective January 1, 2016, the cause of action under Georgia law for medical malpractice against a provider as defined in Code Section 51-13-2 is hereby repealed in its entirety."[2]

A patient who is injured would seek a potential remedy via the Patient Compensation Act, which calls for the establishment of a "Patients' Compensation System."

That patient, via a patient advocate, would appeal to the system to investigate his or her injury.[3] The full record would be reviewed by a rotating collection of medical experts in the relevant field. If this panel agreed that the injury was avoidable, the case would be referred to a compensation committee to make payment.

To qualify for compensation, the panel would, in the Georgia law's verbiage, use the following criteria:

"Medical injury" means a personal injury or wrongful death due to medical treatment, including a missed diagnosis, where all of the following criteria exist:
  1. The provider performed a medical treatment on the applicant;

  2. The applicant suffered a medical injury with damages;

  3. The medical treatment was the proximate cause of the damages; and

  4. Based on the facts at the time of medical treatment, one or more of the following:

    1. An accepted method of medical services was not used for treatment;

    2. An accepted method of medical services was used for treatment, but executed in a substandard fashion.[2]

 

The patient would not need a lawyer to propel his or her case forward; however, if desired, a lawyer could help the patient ensure that due process was followed.

The total pool of funds available for making payments would be less than the aggregate amount of funds doctors paid in professional liability premiums before enactment of the law. In other words, the system would not pay out more in the future than is currently being paid in by physicians. This term would keep costs stable for doctors—by statute—regardless of the number of claims.

The Patients' Compensation System would be a state-based entity and, similar to other state based entities—such as the Florida or Virginia Birth-Related Neurological Injury Compensation programs—payments would not be reportable to the National Practitioner Data Bank (NPDB).

Physicians would not need to purchase medical malpractice insurance, because they could not be sued. Instead, they would pay an annual contribution to administer the program.[2] A family practitioner, for example, would pay $3900 per year; an orthopedic surgeon, $15,600 per year; and a spine surgeon, $17,500 per year. The specialists with the highest contribution rate, pediatric neurosurgeons, would pay $25,300 per year. These rates would be significantly below the current market rate for professional liability premiums—which typically cover only $1 million of liability.

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