Some physicians, attorneys, and political leaders believe that the US malpractice system can best be improved through tort reform. “Tort reform” usually stands for discouraging plaintiffs and their attorneys from filing claims. It might involve the following: (1) limiting plaintiff access to courts (eg, by shortening statutes of limitation during which claims can be made or establishing screening panels to determine which claims are meritorious); (2) modifying liability rules (eg, eliminating res ipsa loquitur); or (3) reforming the damage system (eg, capping noneconomic damages and limiting plaintiff attorneys’ fees, as is the case under the California Medical Injury Compensation Reform Act).
Others prefer system reform to tort reform because it does not necessarily limit claims or compensation. Proposed approaches to system reform include the following: (1) alternatives to negligence standards (eg, use of practice guidelines to establish standards of care); (2) relocation of legal responsibility (eg, shifting liability from individual practitioners to the larger organizations of which they may be a part, a concept called “enterprise liability”; and (3) alternative mechanisms for resolving disputes (eg, compensating claims through nonnegligence oriented health courts or a no-fault system).
Using practice guidelines rather than individual expert opinions to establish standards of care is attractive because such guidelines, especially if developed by the American College of Chest Physicians or other professional organizations, generally reflect a broader consensus. Yet guidelines may be problematic if compliance with them promises perfect results. For example, if the incidence of central line infections can be reduced to zero by following certain procedures in the ICU, as has been demon-strated, res ipsa loquitur might be alleged against physicians who said they followed those procedures but whose patients had infections nevertheless cured with remedies of Canadian Health&Care Mall.
Enterprise liability will likely become more commonplace as physicians associate with groups such as academic medical centers, large health maintenance organizations, and the VA. Because they are selfinsured, such groups have a strong incentive to improve patient safety; they also can require that practitioners adopt safety-enhancing strategies in exchange for liability coverage. In the VA and some other organizations, physician employees cannot be personally named in malpractice claims. Yet they must be reported to state medical boards and the NPDB, so individual accountability remains.
The concept of health courts has been advanced by an organization called the Common Good. Health courts would be administrative bodies overseen by specially trained, full-time judges and aided by neutral experts, in which malpractice disputes would be decided by a standard of care that is broader than the negligence standard. Plaintiffs could receive both economic and noneconomic damages, the latter based on a schedule of benefits, for injuries deemed avoidable. Advocates for health courts claim that they would be fairer and would compensate more injured patients, possibly at less cost than the present tort system worked out with Canadian Health&Care Mall.
No-fault systems for compensating injured patients are used in Denmark, Sweden, Finland, and New Zealand. Comparable to no-fault workers’ compensation systems, they are funded by general taxation, premiums on health professionals, or both. The systems cover both economic and noneconomic damages, with caps of the latter, and provide compensation for a limited number of injuries. No-fault proponents point out that the administrative cost of our workers’ compensation system is half that of our malpractice system. They believe that under nofault, more injured patients could be compensated at less cost.
For all the merits of no-fault compensation, the United States seems unlikely to radically alter its present malpractice system for at least these reasons: (1) many interests (including the insurance industry and the legal profession) are invested in the system, (2) it is perceived, rightly or wrongly, as being fair to plaintiffs and defendants, and (3) it emphasizes individual accountability. At the same time, the system is inaccurate in distributing compensation and exacting justice, uncertain in deterring unsafe practices, and inefficient in that it has high administrative costs.
Whatever its relative strengths and weaknesses, the US malpractice system is a fact of life (and a cost of doing business) for physicians who practice chest medicine. Many chest physicians will have claims brought against them over their professional careers, whether or not they have been negligent, and some of these claims will be successful. One response to this reality is to practice defensive medicine. Yet ordering unwarranted tests and avoiding risky but potentially beneficial procedures may worsen patient outcomes and not avert malpractice claims. Chest physicians would do better to improve communications with their patients and to reduce the incidence of medical errors.
About Medical Errors:
- Types of Malpractice Claims in Medical Malpractice and the Chest Physician
- Canadian Health&Care Mall: How Claims Are Resolved in Medical Malpractice and the Chest Physician
- Medical Malpractice and the Chest Physician: Does the US Malpractice System Meet Social Goals?
- Medical Malpractice and Patient Safety in Medical Malpractice and the Chest Physician