Finally: An End to Malpractice Litigation?

Jeffrey Segal, MD, JD


March 05, 2015

In This Article

How Physicians Would Benefit

In the Patients' Compensation System, there is no claim to defend. A doctor need only provide the patient's medical record. He or she may ignore any other procedural nuance, if desired. Alternatively, he or she may provide an explanation of care that was rendered.

And if the doctor wants to advocate for the patient, he or she may sit with the patient. If a doctor, for example, misses a critical diagnosis that could have easily be made, and that error cost the patient an extra month in the intensive care unit, the doctor could apologize to the patient and work with him or her in a nonadversarial setting to help the patient achieve reasonable compensation.

Furthermore, there would be no depositions, no cross-examinations, and no shutting down of a practice for 3 weeks to sit in a courtroom. Unlike the current system, there would be no reason to deny and defend.

In the Patients' Compensation System, the doctor incurs no personal financial liability for malpractice. In the current system, professional liability policies cover a limit for damages, usually $1 million. If a judgment exceeds this limit, the doctor is personally liable. This creates pressure on the doctor (and his or her insurer) to settle cases that might be defensible. Unlike in the current system, the doctor is fully "indemnified" for a patient's injury.

In the Patients' Compensation System, settlements and judgments reflecting payments to patients are not reportable to the NPDB. Because—unlike in the current system—payment would be made by the state-based system, such payment would not trigger reporting to the NPDB. As the statutory language states, "'Application' means a request for investigation by the Patients' Compensation System of an alleged occurrence of a medical injury and does not constitute a written demand for payment under any applicable state or federal law"[2] (which might otherwise trigger reporting to the NPDB).

How Patients Would Benefit

In the Patients' Compensation System, all complaints would be reviewed. Currently, low-value claims are generally ignored by plaintiffs' attorneys because the cost of prosecuting such claims exceeds the estimated recovery. In contrast, because low-value claims would be heard under the Patients' Compensation System, more claims would be paid; in other words, more patients would have access to justice.

Payment would be made in months rather than years, as is common now. And the amount paid would be rational, reasonable, and predictable. Physicians would be able to speak openly and plainly about medical errors—enabling broad patient safety initiatives to be implemented.

The bill would allow a three-doctor panel to report any practitioner to the state licensing board who is an imminent danger to the public. A physician who poses such a risk would come to the attention of the board much sooner than under the status quo. Transparency is the starting point for fixing systemic safety problems related to those few physicians who are truly a danger to patients. A system cannot change what it cannot identify or measure.

How the Healthcare System Would Benefit

In the Patients' Compensation System, physicians would have no incentive to practice medicine defensively. Currently, if a doctor fails to order a particular test or imaging study and the patient has a bad outcome, that doctor is at risk for defending against a lawsuit that will last years and potentially bankrupt his or her life savings. Under this paradigm, defensive medicine is rational. As one emergency physician explained, "I will scan patients till they glow if it means avoiding even a day in court."

In the proposed system, doctors would be free to exercise their judgment. For example, if a person experiences a minor concussion, that individual will generally head to an emergency department. A minor concussion might be associated with brief loss of consciousness, nausea, headache, and other symptoms. On arrival in the emergency department, such a patient would ordinarily be neurologically intact. Best practices would include ordering an imaging study only for patients who either have or would be likely to develop an intracranial abnormality.

However, defensive medicine is often at odds with best practices—encouraging, in this hypothetical case, the ordering of an expensive scan and needlessly exposing the patient to radiation, whether or not the patient is deemed to be at risk.

In other words, resources could be saved without causing harm to patients. And patients who are unlikely to develop intracranial pathology would be spared radiation from an unnecessary imaging study.

The Patients' Compensation System would create an environment in which defensive medicine would not be needed. If this goal were achieved, the healthcare system would save a fortune.


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