Ethically, a reformed medical malpractice system must address the fact that medical errors do injure patients and are at play in a significant number of malpractice cases. For example, Studdert and colleagues analyzed 1, closed malpractice claims from five liability insurers and concluded that 63 percent of the claims did, in fact, involve injuries due to medical error .
Alternative dispute resolution ADR models, which allow physicians and the health systems in which they operate to acknowledge openly when errors have occurred and offer reasonable compensation to the injured parties, balance the needs of clinicians—to act ethically by being truthful and engaging in vigorous quality improvement—and of patients—to receive compensation for negligence-induced iatrogenic harm. Alternative dispute resolution typically includes either mediation or arbitration.
These two approaches are quite different, but both can be quite effective in resolving disputes in a less adversarial and less costly manner than traditional litigation . A number of health care institutions have experimented with a unique twist on ADR by developing communication and resolution programs CRPs , novel approaches to addressing medical error that have paid off in terms of the costs associated with malpractice litigation .
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These programs encourage open communication and transparency with patients and their families and facilitate restitution for injured parties when appropriate. They also support physicians in disclosure conversations with patients. In , the Lexington VA implemented its CRP, which provided a full disclosure of the occurrence that led to harm as well as an expression of regret on behalf of the institution and its personnel . Under this system, patients and their families are invited to bring attorneys to discuss offers of compensation early in the process.
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With the implementation of this program, the Lexington VA became the VA hospital with the lowest payouts. Additionally, the average duration of cases decreased from years to months . CRPs also exist outside the VA system and come in two varieties: early settlement and limited reimbursement . UMHS self-insures ; all its physicians are employed and insured by the university rather than by commercial malpractice carriers, thereby simplifying buy-in to the CRP.
This model has four components: 1 acknowledging when patients are injured due to medical error; 2 compensating fairly commensurate with degree of harm and quickly when there is a deviation from the standard of care; 3 aggressively defending against meritless cases; and 4 studying all adverse events to determine how health care delivery can be improved.
Tort Reform Essay
In a retrospective chart review of UMHS claims reported in the eight years before and the five years after full implementation of the CRP in , investigators compared the number of new claims for compensation, the number of claims compensated, the time to claim resolution, and claims-related costs from . After full implementation of the CRP, the average monthly rate of new claims decreased from 7. Moreover, the average monthly cost rates decreased by at least 50 percent for total liability, patient compensation, and noncompensation-related legal cost . Patients retain the right to sue, and payments are not reportable to the NPDB.
Physician participation is voluntary, and participating physicians undergo disclosure training. Exclusion criteria include death, clear negligence, attorney involvement, a complaint to the state board, and a written demand for payment. Seven paid cases were litigated, and only two resulted in tort compensation. Sixteen unpaid cases were litigated, and six resulted in tort compensation. The majority of physicians and patients find the system effective and only a small fraction of cases that go through the 3R system evolve into litigated and compensated claims.
Because of the open disclosure and compensation, the animosity between the injured patient and the physician appears to be reduced, and many patients maintain their therapeutic relationship with their physician . CRPs are one innovative approach to medical malpractice reform that address both patient and institutional needs.
CRPs require, however, a culture shift in the medical community and a management of expectations on the part of injured patients who may be anticipating larger payouts than they are offered in this type of system. Currently, apology and disclosure laws in the majority of states do not go far enough in fostering open communication after a medical error has occurred. A study of state apology laws found that the laws of 34 states and the District of Columbia were not written in ways that foster open and honest communication between the physician and the injured party .
This type of law prevents an expression of sympathy e. Only six states have laws protecting expressions both of sympathy and of fault; only three protect expressions of sympathy and an explanation of why the error occurred . Furthermore, only nine states even require physicians to disclose an error to the patient, although hospital accrediting bodies such as the Joint Commission do in general terms require disclosure to patients.
However, in general terms, certain state laws are believed to threaten CRP implementation. CRPs provide a system for physicians to discharge their ethical obligation to communicate honestly with patients. Even outside the context of a CRP, physicians should understand that patients are less likely to sue when they believe they have been dealt with honestly. Furthermore, attorneys, as a practical matter, rarely introduce apology-related information as evidence during trial because doing so contradicts the narrative of the physician as uncaring. However, these trends are not absolutes, and limited evidentiary protection of physician disclosure likely stymies open and honest conversation thereby necessitating the development of CRPs .
While CRPs require buy-in from an entire health system, a grass roots effort to encourage open communication after an adverse event began in , inspired by the Lexington, Ky, VA approach. This advocacy organization, called Sorry Works! Sorry Works! However, buy-in from the medical community is still a challenge outside an organized CRP. Only 2 percent of male physicians and no female physicians reported feeling that an apology would have helped.
However, the survey did not ask about experiences with disclosure and apology training . The Agency for Healthcare Research and Quality AHRQ awarded a number of demonstration grants to institutions , which implemented novel ways of dealing with physician malpractice .
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To date, the effects of these novel approaches is unknown, and little has changed in the realm of medical malpractice under the ACA. Transparency and open communication with patients and families about medical errors allow medical practitioners to fulfill their ethical obligations to their patients even when outcomes are poor. These ethical obligations are grounded in the principles of autonomy, beneficence, and nonmaleficence and the virtues of compassion, courage, and honesty.
Alternative dispute resolution models mitigate stress on clinicians, de-emphasize tendencies of health systems to try to hide fault, and help avoid dragging clinicians, patients, and others through time-consuming, costly, and reputation-damaging litigation. They can also mitigate the stress on patients and allow injured parties to receive reasonable compensation in a reasonable timeframe without the emotional and financial toll of the arduous litigation process.
Creating a cultural, legal, and economic environment where communication and resolution programs can thrive may be an effective approach to creating a win-win situation for patients, physicians, and therefore society as a whole. What is tort? Accessed November 9, Rentmeester CA, George C. Legalism, countertransference, and clinical moral perception. Am J Bioeth. DeVille KA.
Insuring Medical Malpractice. National Conference of State Legislatures. Health cost containment and efficiencies: medical malpractice reform.
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October Accessed February 4, American Tort Reform Association. Noneconomic damages reform. Accessed January 31, Under this arrangement, plaintiffs pay nothing to their attorneys unless they win their case. In that event, the attorney will typically receive 30 to 40 percent of the proceeds. The plaintiff will receive the remainder after reimbursing the attorney for all expenses. In the British began a limited experiment with contingency fees.
Attorneys, judges, and legal systems around the world consider contingency fees unethical. In reality, contingency fee contracts allow the plaintiff attorney to act like a party to the lawsuit, as the attorney in such cases owns 30 to 40 percent of the property rights under litigation.
Obvious conflicts of interest may occur between plaintiff attorneys and their clients. Furthermore, the coercive nature of this arrangement, along with the bargaining advantages attorneys have over their clients, may lead to unethical and exploitative results. For example, the Louisiana Supreme Court rendered a landmark decision in that established the right of attorneys to use contingency fee contracts.
The plaintiff had little money, but had a claim to valuable mineral rights. He hired a young attorney named Huey P. Long signed a contingency fee contract with the plaintiff awarding him half of his property if he won the suit. The Louisiana Supreme Court allowed the contingency fee contract and established the right of attorneys to charge contingency fees in Louisiana.
Other professions do not tolerate such behavior.