Friday, July 14, 2006


Not Every Malpractice Claim Requires a Lawsuit, Congress Told

Barton: ‘System Obsessed with Blame’

WASHINGTON – Medical lawsuits sap time, money and efficiency from the health care system and the court-based medical liability process often fails to produce fair and consistent results for injured patients, experts told Congress on Thursday.

“The status quo fails to deliver,” said U.S. Rep. Joe Barton, R-Texas, chairman of the House Energy and Commerce Committee, during a Health Subcommittee hearing on innovative medical liability solutions. “Patients must often endure years of long, drawn-out litigation before receiving compensation for their injuries. When compensation finally arrives, lawyers’ fees and expert witness fees often take the lion’s share of the award.”

The House has tried for several years to cap lawsuits, but the legislation dies in the Senate. Experts said there are other ways to reform the medical liability system while ensuring that injured patients still have options for fair compensation.

Some witnesses proposed a “health court” that would rely on judgments from neutral medical experts, instead of dueling expert witnesses that are common in liability trials. Another proposal encourages parties to settle malpractice claims before they go to trial.

Lawsuits often produce skewed results for patients, said Dr. Michelle Mello, Harvard University associate professor of health policy and law. Only 5 percent of patients injured in the hospital ever file liability claims, and of those that do, fewer than half receive compensation, she said.

“There is no denying the fact there is a medical liability crisis in this country,” said U.S. Rep. Nathan Deal, R-Ga., Health Subcommittee chairman. “I do not need to repeat the staggering statistics about the astronomical rates of increase in the cost of medical liability insurance over the past few years or talk about the tens of billions of dollars wasted each year due to frivolous lawsuits and doctors forced to practice defensive medicine in order for us all to recognize that we have a legitimate crisis on our hands that must be addressed as soon as possible.”

Some worried that patients would lose the right to a jury trial. But Mello said studies showed that juries are reluctant to award compensation to patients. Fewer than one in four cases that go to a jury result in awards for the patient, while 61 percent of cases resolved out of court include compensation for the patient, she said.

Under a health court, judges trained on medical topics would rely on neutral experts to decide medical liability claims, witnesses said. The health court would include an appeal system that includes review by the standard court system, Mello said. Witnesses also said a health court would be similar to the system used to resolve workers compensation claims, which also bypasses juries.

The American Bar Association didn’t support the concept of health courts, instead favoring expanded use of dispute resolution and arbitration methods already used by courts, said Cheryl Niro, an incoming member of the ABA’s Standing Committee on Medical Professional Liability.

Health courts would add another level of bureaucracy to the court system, she said, while dispute resolution panels are already part of a court system with a simple, direct appeal process. Also, Niro said a health court couldn’t function like the workers compensation system because injured workers don’t have to prove fault, while injured patients still would.

A health court should also rely on a standard of “avoidability,” which is broader than the current standard of “negligence,” said Paul Barringer, general counsel for Common Good. Under this standard, only injuries that could have been avoided are eligible for compensation. More injured patients would receive compensation under this system, he said, while there is less emphasis on placing blame on individual health care providers. Witnesses said studies showed most medical errors are caused by flaws in the health care system, not through “bad apple” doctors.

“The current liability system is obsessed with finding somebody to blame,” Barton noted. “The one holding the scalpel or the last one to touch the patient when things went wrong is the automatic target. It seems to me that we are missing the real problem and that we are not any safer for it.”

University of Virginia Law Professor Jeffrey O’Connell touted the “early offer” proposal, which will let doctors offer to compensate injured patients before the case is taken to court.

Under this system, doctors accused of malpractice could offer to pay the patient economic and other damages. If the patient refuses the offer, they still have a right to take the doctor to court, O’Connell said, however, the case must then be proved under the stricter “gross negligence” standard.

“The present system protects everybody but those who need it,” O’Connell said. Those without health insurance who sue are essentially handed a “lottery ticket,” with a one-in-four chance of collecting, and not until six years later, he said.

One witness said that in many cases, a simple apology and explanation could avoid many hours of litigation. Often after injury, doctors and hospital administrators won’t talk with the patient for fear of that conversation being used against them in court. Margaret VanAmringe, vice president of public policy and government relations for the Joint Commission on Accreditation of Healthcare Organizations, said that “there is evidence that years of expensive and painful litigation ensued, when many families and patients are only looking for empathy and seeking answers.”
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