By Dr. Brenda Fitzgerald
As medical malpractice reform is debated in the General Assembly, it is critical to keep in focus that the way we handle medical mistakes must ultimately protect patients and improve their care.
The current system is not doing that. Of all the statistics being discussed, the most important for patients is that the risk of medical injury due to physician negligence is the same today as it was 30 years ago: A California study of hospital admissions in 1974 revealed that 1 percent of all admissions resulted in a significant medical injury due to medical negligence. A similar study by Harvard in New York in 1984 revealed that 1 percent of all admissions resulted in significant medical injury. So did a large study in 1992 in Utah and California.
According to the Alliance of Speciality Medicine, medical liability costs increased 1,642 percent during that period (1975-2000). That was three times the increase of general medical costs.
There is something fundamentally wrong with the medical liability system if we are paying over a thousand times as much and we are no safer than we were 30 years ago. It is good to know that medical negligence cases are only 1 percent of all admissions, but we have to question if any of the cases that go to court actually improve the system or have anything to do with patient safety.
The Institute of Medicine’s 2000 report suggested that the current malpractice climate makes matters worse. It reported, “[T]here is a reluctance to openly discuss or reveal problems because of the fear of a malpractice claim. Mistakes or bad outcomes are not the learning opportunity they should be and therefore the current system is actually a hindrance to improved quality of care over time.”
There is not a direct relationship of bad care with the cases in court. Of the cases filed, the Physician Insurers Association of America found 61 percent are dropped or dismissed, 32 percent are settled and only 1 percent results in a verdict for the patient. The Harvard Medical Practice Study showed that only one malpractice claim was filed for every eight negligent injuries and, in fact, the physicians were more likely to be sued for rendering non-negligent care. In Georgia, health care providers win 82 percent of malpractice lawsuits.
If the case does go to court and the patient wins, according to Emory University health care expert Kenneth Thorpe, only about 40 percent of the money awarded actually goes to the patient or their family. The rest goes to legal, administrative and underwriting costs.
The patient is the one injured. The patient needs that money. Georgia must do better to improve patient safety and provide for those who are injured.
The Georgia Legislature is bravely discussing how to control increasing malpractice costs this year; lawmakers are to be commended for tackling such a contentious and difficult problem. Georgians need access to doctors who are willing to deliver babies and treat the most difficult cases.
An excellent way to improve safety for patients, improve medical care and probably reduce costs is mandatory medical review panels tied to the medical licensing process. A panel including three board-certified doctors in the specialty involved would review written information on each case before it goes to trial and determines whether the standard of care was met. These doctors would be randomly selected, like jury duty, but would be pulled from another area of the state than the case in question. Two panel members not from the medical community, including at least one attorney, should be added to ensure the integrity of decisions.
If good care was given but there was a bad outcome, there is a good reason to settle out of court. If the patient still wants to go to court, and a jury also decides that good care was given, the loser should bear the cost of that lawsuit. If the standard of medical care was not met, the panel should decide the amount and kind of retraining the doctor must obtain before his license is renewed the following year.
Of 21 states using medical malpractice review boards, just three are considered crisis states by the American Medical Association. None of these states directly link the panel’s findings to the medical licensing process.
A medical malpractice review panel is a win for all Georgians. An expert panel supports doctors who provide good care without limiting access to the courts. Bad doctors are retrained or lose their license to practice. Patients receive a credible second opinion without the cost of a full trial. With that second opinion, they should be able to reach quicker settlements. Medicine and patient safety improve and the cost of medical malpractice goes down.
We can argue indefinitely on how best to compensate victims of medical errors, but the long-term goal must be to reduce the number of errors.
Dr. Brenda Fitzgerald is an OB-GYN and the chairman of the Board of Governors of the Georgia Public Policy Foundation. The Foundation is an independent think tank that proposes practical, market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the views of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.
© Georgia Public Policy Foundation (February 11, 2005). Permission to reprint in whole or in part is hereby granted, provided the author and her affiliations are cited.
The Foundation’s Criminal Justice Initiative pushed the problems to the forefront, proposed practical solutions, brought in leaders from other states to share examples, and created this nonpartisan opportunity. (At the signing of the 2012 Criminal Justice Reform bill.)