The malpractice system has been widely panned by medical professionals and laypeople alike. No one has a kind word for it. All physicians, regardless of how careful and how smart they are, expect to be sued at least once in their careers. On the flip side, hundreds of thousands of people suffer harm or are killed by medical mistakes every year. For them, the only road to compensation, or, indeed, a full account of what happened, is a lawsuit. But suits take years. Legal expenses are exorbitant, and only the rare combination of the right client, the right mistake and the right target will allow an attorney to recoup their costs with a share of the award.
Malpractice; it doesn't work. What will?
It's cold comfort to say that the myths of malpractice -- that it bankrupts physicians and drives them out of practice, that it is an easy way for cheaters to make a pile, that it is a bounty for predatory lawyers -- are contradicted by the facts. Independent reviews, by teams of physicians, of malpractice awards, have found more than three-quarters of the awards to be somewhat or entirely justified. Malpractice remains a minor expense in a country that pays most physicians very handsomely. And the lawyers in question have a long way to go for their dollar. These facts are cold comfort, because malpractice does not do any of the things it is supposed to do: it doesn't protect people from mistakes, or reliably compensate people who have suffered harm, nor does to identify bad actors and weed them out of the profession.
One popular solution is to cap noneconomic damages in malpractice lawsuits, a "solution" that has been found to disproportionally harm the elderly, women, and the poor.
Malpractice caps obviously tackle only one small part of the problem; the pressure that malpractice premiums put on physicians. The problem with that is threefold. First, insurance companies do not determine their rates based on the amount of malpractice awards ( see the Center for Justice & Democracy’s 1999 study, Premium Deceit – the Failure of "Tort Reform" to Cut Insurance Prices.) Second, the cost of insurance does not significantly impact most physicians, the exception being those that are already in a vulnerable position; rural practitioners, Ob/Gyn in certain practice environments, and hard-pressed primary care physicians. If you are a radiologist or a surgeon, your malpractice premium is likely to be less than 10% of your quarter-million to half-a-million-a-year income. In other words, doctors aren't being driven out of business by malpractice, rather, a small number of physicians already pushed to the edge of viability by our crazy health care system add the burden of malpractice insurance to a huge list of pressures.
Finally, this "solution" does nothing about the real problems of malpractice. It does nothing to reduce medical errors, to speed the resolution of claims, or to make recognition of error and compensation available to people who lack the time, resources, or inclination to sue (and in the review of more than 1,500 tort case cited above, plaintiffs were one-and-a-half times as likely to get nothing for a valid claim as to get something for an invalid one; the system fails the patient more frequently than the physician.)
An excellent resource on the problem of medical mistakes is Gawande's "Complications," a book that in addition to making the bestseller list is so well-loved by physicians that the surgical department at my medical school gave a copy to every one of its residents. I am going to Patrickize large parts of his analysis here.
Malpractice is failing because we are relying on it to do too many different things, things, moreover, that it is not well-designed to achieve. We want it to find errors, deter mistakes, identify bad actors, and compensate those that have been harmed by mistakes. We also, and this is an important but little-recognized function, want the system to search for and document the truth; to tell us why something happened, and review the actions of the parties objectively.
We should replace malpractice with several different systems, narrowly targeted at these goals. Physicians and patients should agree (at their first meeting) to binding arbitration, lasting no more than six months from the time of the complaint, to investigate an incident and determine what happened. If a mistake was made, the arbitration will compensate the victim from a common fund supported by all healthcare providers (paying into it instead of enriching the insurance companies with malpractice premiums). Separate from this -- and this is the crucial point -- separate from this, the arbitration will assess fault and responsibility and have the power to levy fines, order the caregiver (or their employer, or both) to complete additional training or community service, or make an apology. A physicians license could be suspending or revoked, depending on the findings. Or nothing could happen at all.
This is the crux of matter; separating the issues of harm, compensation, error, and blame. A person could have their brain destroyed by hypoxia during a surgery. Right now, their only recourse is to find someone, place the blame on them, and sue them. This is time-consuming, uncertain, and depending on the resources of the person who made the mistake, even futile.
Under a new type of system -- not no-fault, exactly, but not plaintiff-defendant driven -- the arbitration would decide what happened. If a mistake or accident caused the harm, damages would be awarded from a common fund. The damages would be the same whether the anesthesiologist was drunk or whether an untraceable company in China sold a tainted medicine. Accident, harm, compensation. Blame and punishment are separate; in certain kinds of accident, where a system, not a person, was primarily at fault, the only punishment may be changing that system in the future.
It should work the other way as well. Incidents reported by patients, family, and caregivers should be investigated with the same vigor and speed. The medical community as a whole should be brought under the authority of an institution modeled after JHACO, the institution which supervises hospitals and other providers and assesses their use of the best, safest practices (http://www.jointcommission.org/).
Suppose the anesthesiologist was drunk (not to pick on anesthesiologists, just to stick with the analogy). In this version, the patient did fine. Should anything different be done in regard to the doctor, depending on what happened to that particular patient? Of course not! We need to investigate and sanction practices, not results. Behavior, not consequences. To be active in enforcing safe, responsible care, not reactive in waiting for a patient with ample resources and an aggressive lawyer to be harmed before we tackle bad conduct. Just as compensation is independent of fault, fault should be independent of harm.
We're almost done, but there is another separation that is needed: mistakes need to be separated from flaws. The airline industry has done this by instituting a no-fault reporting policy; if you report an accident or near-miss within ten days, you are protected from punishment. The system is the primary target of this, the third element. We need an overseeing authority, like the AMA, but more like JHACO, that is constantly evaluating the systems that generate mistakes, and investigating and then promoting the necessary changes in healthcare practices and caregiver education.
Industries as diverse as the airlines, the automotive industry, and the medical specialty of anesthesiology, have tackled the problem of errors, and have come to strikingly similar conclusions. People err. That is our nature. Harmful, damaging errors -- like the ones that claim tens of thousands of lives of patients every year -- can be far more effectively reduced by attacking bad systems than by attacking people who make mistakes. Which saves more lives, suing a resident who made a mistake in her note near the end of a 36-hour work day, or instituting an 80-hour-workweek rule for residents? Suing a pharmacist who gave the wrong drug, or replacing handwritten scripts with typed prescriptions?
It will always be important to have a part of the system that points a finger and says -- that person made an error, that person was hurt. A system needs to provide a sense of justice, a sense the truth was found. And sometimes the problem is within the person, not the system. But to reduce the toll of morbidity and mortality from medical errors, to really get the numbers down, what we need is a third thing to the system that goes after bad processes that enable human error. Because, sadly, doctors are people too. They make mistakes at work, just as we all do. It would be nice if people holding lives in their hands got a pass on human fragility, but no such luck. So while we need all these components -- investigation of the facts, compensation for those harmed, identification and corrective action for bad actors, and systems improvement -- it is the latter, and only the latter, which has the potential to dramatic reduce deadly medical errors in the future.