This weekend the New York Times had two good opinion pieces about reform in the medical liability system. Both contributors agree that the real problem is medical errors, not medical malpractice lawsuits, and that arbitrary caps on damages do little or nothing to address the underlying problem of too many preventable medical mistakes.
Professor Tom Baker writes that medical liability actually improves patient safety, because it has led hospitals to hire risk managers and create policies and procedures that work to improve safety. He also mentions an important fact lost on many tort reform advocates, that most victims of medical malpractice to not file lawsuits. Ultimately, he says,
… the real problem is too much malpractice, not too many malpractice lawsuits. So medical providers should be required to disclose injuries, provide quicker compensation to deserving patients and — here’s the answer for doctors worried about their premiums — shift the responsibility for buying malpractice insurance to hospitals and other large medical institutions. Evidence-based liability reform would give these institutions the incentive they need to cut back on the most wasteful aspect of American health care: preventable medical injuries.
Professors Michelle Mello and Amitabh Chandra contend the medical liability system isn’t working. Both the doctors and victims are battered by it, the doctors always playing defense, worried about insurance costs, litigation, and their reputations. And the victims, embroiled in stressful litigation, have to wait up to five years, on average, to receive compensation.
Mello and Chandra propose two reforms: The first, where there is reliably scientific evidence of what constitutes optimal care, the doctors should be able to present that evidence in defense before a lawsuit is filed. Second, pull out of the liability system certain types of cases, such as birth injury cases, and move them into a no-fault system. They point out that other states have done this with some success, and conclude that their proposals would not do away with the malpractice system, but would curb the worst of it.
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