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Finally: An End to Malpractice Litigation?
In a recent Medscape
article, neurosurgeon Jeffrey Segal, MD, JD, discussed legislation now wending its way through the Georgia and Florida legislatures that, if enacted, would put an end to malpractice litigation in those states and could serve as a template for other states to follow suit.
"The bills would, if passed, transform the current medical tort system into an administrative system for redress," Dr Segal wrote. In the Georgia bill, a patient who is injured would seek a potential remedy via a "Patient Compensation Act," which calls for the establishment of a "Patients' Compensation System."
"That patient, via a patient advocate, would appeal to the system to investigate his or her injury," Dr Segal explained. "The full record would be reviewed by a rotating collection of medical experts in the relevant field. If this panel agreed that the injury was avoidable, the case would be referred to a compensation committee to make payment."
The patient would not need a lawyer to propel his or her case forward; however, if desired, a lawyer could help the patient ensure that due process was followed.
"The total pool of funds available for making payments would be less than the aggregate amount of funds doctors paid in professional liability premiums before enactment of the law," the article noted. "In other words, the system would not pay out more in the future than is currently being paid in by physicians. This term would keep costs stable for doctors—by statute—regardless of the number of claims."
"Physicians would not need to purchase medical malpractice insurance, because they could not be sued," Dr Segal observed. "Instead, they would pay an annual contribution to administer the program. These rates would be significantly below the current market rate for professional liability premiums—which typically cover only $1 million of liability."
The article sparked scores of responses from physicians, about half of which could be grouped under the heading, "It's about time," while the rest expressed skepticism that a solution to the malpractice crisis might finally be at hand.
"Plaintiffs' lawyers will argue that state constitutions guarantee patients trial by jury, and the 'Patients' Compensation System' removes that right," a preventive medicine specialist pointed out. "However, a trial by jury is costly and time-consuming, and does not even guarantee the patient will get compensation in the end. Plus a third of any jury award goes to lawyers. A no-fault 'Patient Compensation System' makes so much sense, it's scary. We can only hope the bar associations will seriously consider this to replace the current lottery system."
"At last!" a radiologist declared. "Let our peers judge us, not lawyers. The aim is quality care, not the punishment of physicians for the greed of lawyers. The sample premiums cited in the article are a fraction of what we currently pay. And those costs get passed on indirectly to the consumers, whether they know it or not."
"Yes, yes, yes, a thousand times yes," a neurologist exulted. "I hope this model becomes adopted nationwide. I predict Georgia and Florida will see an influx of physicians because of this. My only question is how will it work for a physician who carries multiple state licenses."
"Georgia and Florida will have to shut their doors to the stampeding new docs," a pediatrician predicted, "headed by yours truly. Finally, something that makes sense."
"Great news for the prospect of a new system," a pediatrician cheered. "Never thought I would see it in my career."
But other physicians were not so sure the Georgia and Florida legislation heralded the dawn of a new era.
"Sorry, but as this stands, it makes all the sense in the world," an orthopedic surgeon countered. "That means every shyster and every politician is going to jump on it to destroy it. Dream on, but do not hold your breath!"
"So now you are asking us to chip in some money to cover all potential cases that all parties are trying to settle?" an internist commented. "In Florida, as stated, we have been forced to pay a yearly fee for neurologically damaged infants, even if we do not practice ob/gyn, pediatrics, or any other high-risk specialty that could incur damages. If we do not pay up, we will not have a license. The high cost of medical malpractice has caused a lot of the practitioners to go bare. Now there will be the possibility that if we do not chip in to this fund, we will not be able to keep our licenses active. And you wonder why good physicians are getting out of medicine!"
"I hate to sound like a broken record, but I agree with the consensus of many other respondents here," an ophthalmologist asserted. "These bills haven't got a prayer of passage. There's no way in hell the med-mal trial attorneys are going to let their multibillion-dollar industry be dismantled this easily. At the very least, they will find a way to cripple this legislation, probably by making the review process nonbinding."
"This sounds like a good solution," a pediatrician commented. "Now, can anyone get it past the trial lawyers?" To which an oral surgeon responded: "Sure. It's as easy as pushing a brahma bull into a phone booth."
"This is an awesome idea, or should I say, fantasy," an emergency physician summed up the naysayers' point of view. "I'm sure that some lobbying body will pay off some regulatory body to sweep this under the rug until it fades away. Not trying to be negative," he added, "but, rather, realistic."
