Physicians should seize malpractice reform opportunity

October 6, 2009

In his Sept. 9 address to a joint session of Congress, President Obama opened the door to a discussion of changes in the medical malpractice system, saying he was instructing the Department of Health and Human Services to revive an idea from the Bush administration

In his Sept. 9 address to a joint session of Congress, President Obama opened the door to a discussion of changes in the medical malpractice system, saying he was instructing the Department of Health and Human Services to revive an idea from the Bush administration: demonstration projects to explore malpractice reforms.

It was widely characterized as a bid for conservative votes and drew predictable responses: anguish from liberal Democrats and trial lawyers, grumbles from conservative Republicans and business groups. But Obama’s gesture could, in fact, offer a new opportunity to find some sensible reforms of what many have concluded is a broken medical malpractice system.

From a cost standpoint, the issue is not malpractice per se. The Congressional Budget Office reported in December that it had not found consistent evidence that changes in medical malpractice laws would have a measurable impact on healthcare spending, according to The Washington Post.

But there are other important issues at stake:

• Fairness, to physicians and to patients who may be harmed by medical errors. There needs to be a remedy for patients who are harmed by conduct that is careless, negligent, or malevolent. At the same time, many physicians and medical facilities, with some justification, see the malpractice legal system as willful and capricious. A consequence of this is that medical errors are hidden or not acknowledged, which makes them more difficult to correct.

• The problem of defensive medicine. Obama cited this in his speech and most or all of you reading this have seen it occur. It’s hard to tabulate the costs of this to the medical system, but there is clearly a cost in terms of quality and patient health, particularly when defensive medicine leads to unnecessary x-ray scans.

• The cost of solutions not explored. Certainly one element of dealing with medical malpractice is to improve quality standards so the mistakes that lead to lawsuits don’t occur in the first place. Simply capping damage awards does not achieve this goal. To use an extreme example, a complete ban on medical malpractice awards would certainly reduce costs (and it would probably find some support in Congress), but how would it improve the quality of care?

There are options out there and now is the time to look at them. Commentators have suggested that dedicated medical malpractice courts, similar to bankruptcy or admiralty courts, would bring more expertise to the malpractice system. Other possibilities include liability protection for physicians who follow established protocols (this found support from radiologists in an online survey we ran over the summer), and prelitigation screening. These and other ideas need to be tested.

For too long the debate has been stuck on national malpractice caps. Physicians, corporations, and Republicans are for them, plaintiffs’ attorneys and Democrats are against. We need to move beyond this approach to a broader discussion of systemic changes that protect patients against medical mistakes and physicians against frivolous lawsuits or unfair judgments.

Physicians and their medical associations should take Obama up on the challenge and offer malpractice reforms that would meet the twin goals of reducing defensive medicine and improving the quality of care. There is plenty of opportunity to find common ground here. It should not be wasted.