Monday, July 13, 2009

WSJ Article by Epstein on Malpractice Reform

On a recent episode of NPR’s Forum, an expert guest commented that medical malpractice reform tends to be a red herring espoused by those who don’t want to change the broader dynamics of the healthcare system.
Nonetheless, it does deserve some attention. I’ll take this opportunity to take on Richard Epstein’s view of medical malpractice reform in his recent WSJ editorial (also on the University of Chicago Law School blog).

Epstein’s view and those of the responses commented on the WSJ and U of C site seem to take diametrically opposed views. Epstein favors allowing providers to contract out of civil jury trials; the commentators find this inequitable to the injured patient population. I take the view that a Pareto-efficient compromise position exists.

Administrative costs of the malpractice system (not including defensive practice of medicine) exceed total compensation to victims. (T.A. Brennan and M.M. Mello, "Patient Safety and Medical Malpractice: A Case Study," Annals of Internal Medicine 139 (2003): 267; D.M. Studdert et al., "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation," New England Journal of Medicine 354 (2006): 2024.)

Abbreviating the trial process to focus on the question of whether an avoidable compensable event had occurred would be fairer to patients and physicians. An avoidable compensable event (ACE) is an injury that 1) is caused by treatment (or omission of treatment) and 2) should rarely occur when care is provided according to best practice. (H. Luft (2008) Total Cure, Cambridge: Harvard University Press). This standard would be fairer to the population of injured patients as a whole, which is much larger than those filing lawsuits under today's system. (Id). While compensation to patients as an aggregate class could be increased using the savings from administrative costs forgone, the injured patients would forgo damages for pain and suffering.

As detailed by Luft (2008), ceasing to award legal damages for pain and suffering, in addition to making a finding of negligence unnecessary, would make care providers less likely to practice defensive medicine. At the same time, punitive damages should be applied to care providers who demonstrate a pattern of failing to meet the applicable standard of care. (Id). This would require, however, removing the doctrine whereby hospitals and other care delivery teams can claim that they have no control over medical staffs. (Luft, 2008;

1 comment:

  1. Coming from another country and spending time in Europe, I see a fundamental difference in the level of trust people have in physicians among different countries. But I am not sure that is the key contributor to have more malpractice lawsuits in the US, or we actually have more incidences here.