Medical Malpractice Reform Notes

Here's some quick notes on medical malpractice reform. (forgive the grammar, typed in class.)

Typical Reform:

1. Shorten SOL
1. Ridiculous: Patients don't know they've been victims until long after they have had the procedure
1. Only one reason: Protect the insurance companies

2. Put a ceiling on damages
1. Terrible Idea: Damage limitations do nothing to help plaintiffs who have legitimate small claims
2. They are unjust to plaintiffs with big claims
1. Premature infant given excessive oxygen. Blind + mentally retarded. $2m cover the cost? No
3. Damage limitations cast the cost of injuries where they can least well be born. Individual suffers.
1. Provide a windfall to insurance companies

3. Eliminate lawyers contingency fees
1. Simply a way to play on doctors irrational hatred of lawyers
1. The contingency fee is the doctors best friend
1. Opponents to contingency fee argue that it gives a way for lawyers to inflate the costs
2. Lawyers have an ethical obligation to get the most possible for their patient
3. The contingency fee gives the plaintiffs lawyers an incentive to screen out bad cases.
1. Plaintiffs lawyer gets nothing if the client gets nothing.
2. Elimination of contingency fees can only hurt poor people with big claims
1. Wouldn't be able to hire a lawyer otherwise.
3. Who are hurt by contingency fees: People with legitimate small claims
1. But, all legal fees hurt poor people with legitimate small claims

4. Eliminate ad-damnum clause in complaint
1. Thought is that it gets into the newspaper, and looks bad
2. Not going to solve the problems, not bad either

5. Require compulsory arbitration or medical review panels as a substitute for litigation
1. If it is part of the litigation it does nothing but lengthen the litigation
2. If it is used instead of litigation, then you don't add time to it, but rather, you have turned something from a social question, into a scientific question, putting the doctors in charge. This makes no sense
3. If it is part of it, you have retained all of the evils of the present system

6. Adoption of designated compensable event system.
1. Some 'body' of persons gets together (doctors), and think about everything that can possible go wrong in the entire practice of medicine.
1. 2 lists: those things caused by negligence, those things not caused by negligence if they go wrong.

Could do:

1. Limit pain and suffering damages
2. Get rid of lump sum judgments

-We need a system of loss allocation

-A pure question of economics.

-Has nothing to do with how the accident occurred. Instead, only addresses who should bear the cost of the injury

-Adopt a no-fault system for compensation for medical mal occurrences

-Typically accompanied by damage restrictions that limit pain and suffering compensations

-More people recover, for less amount

-Still need to prove that the harm was caused by the physician

-Godfather approach

-Offer they can't refuse, patients want the money now.

-Accident compensation scheme (like New Zealand)

-Automatically compensates everyone, losses are well spread

-Never will be done here, can't agree on a table of prices.

-We need a system for disciplining physicians

-Medical discipline boards are worthless

-Underfunded, understaffed, no effective case finding mechanisms

-Need to look for bad practice, before injuries

-Then have a wide range of sanctions

Advice to doctors:

1. Avoid malpractice, figure out how to reduce malpractice
1. Anesthesiologists have done this. Wrote out checklists for what to do.

2. The most important thing to do is to apologize
1. Ample evidence that angry patients are more likely to sue.
2. Explain what went wrong, and what you will try to do to prevent this from happening again.