MMA Viewpoint
The Trouble with Torts
The quest for lower health care costs has fueled interest in medical malpractice reform. Rather than retool the current system, however, I believe we need to create a new one—one that not only reduces costs but also better enables patients to redress grievances and physicians to improve care.
We currently have a system of jackpot justice, and it’s often as arbitrary as it is unfair to all involved. Some who are harmed by medical errors never litigate their claims. Others do but don’t prevail or aren’t compensated. And physicians may be sued whether or not medical malpractice occurred. No credible data show that the threat of malpractice improves patient care or reduces the likelihood of a mistake. In fact, the contrary is true.
The threat of a lawsuit infuses fear and distrust into the patient-physician relationship that can cloud a physician’s reasoning and judgment and impair his or her ability to make objective decisions. This leads to inappropriate medical care and results in billions of dollars worth of unnecessary testing. Cost aside, unnecessary testing is bad medicine that may harm patients and violate the “Primun non nocere” dictum of medicine.
We won’t fix these problems by making small revisions to our system such as capping noneconomic damages. Our best option is to completely remove the process of managing errors and compensating patients from our adversarial tort system. These issues should be dealt with in a no-fault environment. We should stop shaming and blaming and focus on compensating the injured and eliminating medical errors.
A number of examples illustrate how a no-fault system can work. A successful one is the National Vaccine Injury Compensation Program in which the U.S. Court of Federal Claims determines compensation amounts for those injured by vaccines. The program is funded by a fee levied on vaccine sales and it is not necessary for a person harmed by a vaccine to allege or prove malpractice.
Virginia and Florida also have had success with no-fault medical malpractice models. In the mid-1990s, Duke University Medical Center researchers studied these states’ no-fault programs for birth-related neurological injuries. They found that the no-fault systems were less expensive and better able to quickly resolve complaints. They also found that although total payments did not decrease, a much smaller portion of payments went to lawyers (3 percent compared with 39 percent under the tort system).1
New Zealand jettisoned its tort-based system for a government-funded compensation system in the 1970s and implemented a true no-fault approach in 2005, making compensation available for personal injuries suffered while receiving medical treatments. As a result, New Zealand’s system now provides effective processes for complaint resolution and provider accountability and offers timely compensation to a greater number of injured patients.2
The realization that the United States must reduce the explosive growth of spending for health care has led to a willingness to explore alternatives to our current system. Health and Human Services Secretary Kathleen Sebelius has set aside $23 million for tort reform demonstration projects, and President Obama would like to spend more. Minnesota should take advantage of this opportunity and lead the way toward developing a system that would be fair to injured patients, hold providers accountable to clear standards, and improve the quality and consistency of medical care.
References
1. Robert Wood Johnson Foundation. Can the No-Fault Approach Contain Malpractice Insurance Costs? Available at: www.rwjf.org/reports/grr/027070.htm. Accessed March 17, 2010.
2. Bismark M, Paterson R. No-fault compensation in New Zealand: Harmonizing injury compensation, provider accountability, and patient safety. Health Aff. 2006;25(1):278-83. Available at: http://content.healthaffairs.org/cgi/content/full/25/1/278. Accessed March 17, 2010.