For years, the discussion of medical liability reform has been fraught with difficulty. Experts in the fields of economics, medicine and law cannot even agree on the scope of the problem. Estimates of the total cost of the malpractice industry in the United States ranges from a mere $11 billion a year in legal costs and claims, to over $500 billion a year when factor in the cost of “defensive medicine.”
Many physicians, including my practice partners in Internal Medicine and I, have witnessed defensive medicine in practice. The threat of a lawsuit is certainly a potent driver of wasteful health care costs. The American Medical Association has estimated that over 42% of all US physicians have been named in a medical liability suit. Their survey noted an increasing likelihood of having been named in a suit correlating to years of practice along with surgical/procedural specialties. The survey further found that male physicians are twice as likely to be sued as their female counterparts. Medical liability insurance costs and the fear of a lawsuit cause great distress in some physicians.
Medical liability law does not exist to cause physician distress. It exists to address some of the tragic consequences of medical negligence. For someone who is not an attorney, or if you happen to be an individual lucky enough not to have been affected by a medical error, you may want to read Atul Gawande’s exquisite treatment of the dilemma (pages 84-109). I recommend all physicians read Dr. Gawande’s impassioned work as he addresses the issue both from the physician and patient perspective.
There are attempts underway to reform the medical liability process. Legislators in Massachusetts established Medical Malpractice Tribunals to review medical liability cases prior to going to a jury trial, and as the MA experience continues to unfold we will know more about their success or failure. Proposals for Special Health Courts sound promising, and calls for studies of their efficacy have been made by notable non-partisan organizations. Some legal scholars have raised questions about Health Courts, and input from the legal profession should be considered. The Patient Protection and Affordable Care Act, passed in 2010, will make available five-year demonstration grants for States to develop such alternative systems.
There are ways physicians can immediately address the problem of malpractice, however. The key: communication. Medical liability carriers know this and are proactively providing education to their clients to avert new claims. There has been tremendous success at the University of Michigan in their efforts to tackle the problem. Their system is predicated on identifying medical errors quickly along with full disclosure of those errors to affected patients. Patients are offered an apology and compensation when the UM system is found at fault. Legal defense costs have plummeted, but this is the least significant outcome in my opinion. Patient safety has improved through their efforts as experiences with errors are shared. Physicians at UM have learned from their colleagues mistakes, and a culture of transparency has led to further programs to help reduce medical errors. I have no doubt that patients and families affected by medical errors appreciate the honesty and explanations of what went wrong.
After all, as human beings, physicians will make mistakes. Our ethical duty demands honesty and transparency when medical errors occur. It is nearly a universal opinion that there is a need for reform, but improved communication between doctors, patients and health care organizations will reduce the burden of lawsuits long before there is national legislation regarding medical liability law.
Author -- Dr. Christopher Lillis