Many say that medical malpractice cases have a lottery mentality to them and that the system should be reformed. There is validity to their perspective. Some judgments in the courts are very large, and medical malpractice costs add to the overall cost of health care.
On the other hand, patients and patient advocates say that the medical malpractice system is necessary as a policing mechanism that punishes, appropriately, physicians who perform in a substandard way. They want a mechanism whereby physicians and hospitals, with infinitely more resources than an individual patient, can be held to account for their poor performance. There is validity to this perspective as well.
Malpractice judgments can motivate physicians to be more careful. However, cases that are settled do not make it into the public domain, and thus no robust system detailing physician lapses exists. If a doctor or hospital clearly makes a serious mistake, they are very likely to settle and keep the case confidential. Usually, it is just the borderline cases that make it to trial. The public does not know about the habitual offenders who consistently settle.
There is a better way to handle this medical malpractice problem. Three issues should be addressed. One involves policing the more egregious physician errors in judgment or skill. The second is to deny patients an opportunity to cash in despite a reasonable medical result (there is a limit to what miracles any physician can perform). The third, and rarely mentioned, issue is the effect of the legal profession on the costs of this system.
The new approach should include:
1. Every medical society would be required to develop a standard of practice protocol for medical issues in their specialty. This would be a list of what steps a “reasonable” physician or surgeon would take to address a given medical condition. If the physician followed these protocols and had a patient sign a form that details the risks and benefits inherent in the procedure, only egregious negligence or error would result in liability.
2. Every state would set up medical care adjudication panels. These panels could encompass an area or a certain population. The panels would include physicians in the specialty, judges or judicial designees, and patient advocates. The panel would review whether physicians followed practice protocols and whether a medical result was within or outside the normal outcome parameters for that procedure, test or exam.
3. If it is determined that there was medical negligence or error, a medical compensation committee, set up by the state, comprised of actuaries, judicial designees and patient advocates would review the case and determine a proper compensation.
This approach avoids any claimant lottery mentality yet brings closure to the issue, potentially forestalling large expenses that could bankrupt patients, reducing clutter in our courts, eliminating the cost of the contingency malpractice lawyer, enforcing physicians’ use of best practices developed by thought leaders in medical societies and allowing quick re-education of the physician if they are deemed to be at fault—all of which allow for a focus on effective, not defensive, medicine.