What is the Future of Med-mal Litigation?
Alternative Dispute Resolution May Lead the Way
Jul 22, 2009
In theory, the two main purposes of the tort system are to compensate patients injured due to medical negligence and to deter unsafe practices that lead to injury. However, a widespread consensus among legislators and physicians, based on the findings of a 1999 report, To Err is Human, Building a Safer Health System by the Institute of Medicine (IOM), that patient safety in health care is not what it should be. According to the study, one of the main weaknesses is that comprehensive reporting of medical errors, from minor mistakes to those that cause serious injuries to patients, needs extensive improvement.
Broader interest in this topic was created by the Institute of Medicine study. The IOM study estimated that between 44,000 and 98,000 hospital deaths per year are attributable to medical errors. Most of these deaths are preventable, the study said.
Better Communication Needed Now
Among the most difficult problems to fix is the often poor communication between physicians and patients. Despite their legal and ethical responsibilities to share information with patients, physicians are not always forthcoming. This is one reason that lawsuits are brought in the first place: to find out whether, in fact, medical errors had occurred. Fear of liability is what keeps physicians silent after an error or injury has occurred. Medical malpractice lawyers have said that what turns an otherwise reasonable patient into a malpractice plaintiff is not the error, but the attempted cover-up.
For decades, malpractice lawyers and insurers have counseled doctors and hospitals to "deny and defend', according to a May 2008 article in The New York Times. “Many still warn clients that an admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.”
An innovative alternative to “deny and defend” was developed in 2005 by the Sorry Works! Coalition, an organization of doctors, lawyers, insurers, and patient advocates that promotes full disclosure and apologies for medical errors. The group believes that lack of communication about errors “often represent emotional, knee-jerk responses within the medical, insurance and legal communities.” Its goals include educating all stakeholders in the medical liability debate, helping to overcome cultural and legal barriers to full disclosure.
Admitting Mistakes
The Sorry Works! Coalition works with state pilot programs and insurance companies to promote full disclosure and apologies as a solution to the malpractice crisis, focusing on a protocol that requires health-care providers and their insurers to apologize if an analysis shows that an error took place or a standard of care wasn't met -- admitting fault, providing an explanation of what happened and how the hospital will ensure the error isn't repeated, and offering compensation.
The "disclosure and apology" movement has spread rapidly, as a growing number of states pass laws protecting a doctor's apology from being used at trial, and as more hospitals adopt policies requiring that doctors and nurses promptly disclose errors and apologize to patients and families when appropriate.
“Now hospital risk managers and insurers are taking a different tack, in part because of mounting evidence that disclosure and apology programs, which often include an up-front offer of a financial settlement, can sharply reduce malpractice costs,” according to a 2007 report published in The Wall Street Journal. The end result attempts to promote an environment where a physician's disclosure of any error and empathy with the family will not be used against the doctor in litigation.
Alternative Dispute Resolution
One of President Obama's goals is to change the medical malpractice system. Although this issue was not discussed in detail during the presidential campaign, President Obama may have offered a preview of where he stands on the issue. In 2006, Obama and Hillary Clinton co-authored a New England Journal of Medicine article, “Making Patient Safety the Centerpiece of Medical Liability Reform.”
The article described a bill that Obama and Clinton co-sponsored in the U.S. Senate called the National Medical Error Disclosure and Compensation (MEDiC) Bill, which would have created an alternative dispute resolution program and special health courts. It's still too early to tell, but this could be the kind of medical malpractice reform that President Obama would favor.
