Is Legislation to End Malpractice Lawsuits Realistic?

Hal Dasinger, JD


July 30, 2015

In This Article

Will You Avoid Being Reported to the NPDB?

The pronouncement that physicians in the system will not be reported to the NPDB is no more credible. No state has adopted this plan, so no definitive opinion is available. However, recent action by the Department of Health and Human Services (HHS) regarding new legislation in Oregon and Massachusetts is instructive.

Both states enacted alternative programs for dealing with medical injury, although neither went as far as the administrative model proposed in Georgia, Florida, and elsewhere. Both states sought rulings from HHS that payments under their alternative models be exempt from reporting to NPDB. Both were instructed that payments are reportable. And before any objection is raised that the situations aren't comparable, take a look at the first paragraph of the HHS decision[4]:

Although the Massachusetts and Oregon medical malpractice reform models are the only two existing models of their type, based in legislation, other states (including Florida and Georgia) are examining similar models for future implementation.

Much of the momentum behind these proposals has been generated by promising physicians that they will never be sued. Unfortunately, this promise will prove as impossible to keep as the others. The right to jury trial for medical injury is a feature of common law; is guaranteed by many state constitutions; and has been clearly enunciated by the state supreme courts in Georgia, Illinois, Missouri, Oregon, and a multitude of other states. Substituting administrative review as an exclusive remedy for medical injury will not stand up to the criteria applied even to proven, effective reforms. The former Georgia attorney general wrote an opinion[5] to that effect, and no credible counter has been offered by the proponents.

Too Good to Be True?

No one will argue that civil litigation is an efficient way to compensate legitimate claimants for their injuries. But the proposed substitute doesn't stand up to legal scrutiny, actuarial analysis, or logical examination. Legislation seeking to establish this administrative substitute has been introduced in a number of states, usually under the guise of tort reform. So far, none of these bills has been successful.

Advocates for patients and for physicians should be wary of any plan promising to both increase payments and decrease costs. If something seems too good to be true, it probably is. In the case of this particular proposal, both patients and providers stand to lose when the plan inevitably fails to keep the promises made by its proponents.


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