PRESIDENT OBAMA announced in his State of the Union speech that he would deal with Republicans on one of their pet issues, reform of medical malpractice. But nothing is likely to get done because congressional Democrats oppose the GOP’s trademark solution to high liability costs — a federal law capping damages that malpractice victims can receive. They are right that a cap is too arbitrary, limiting awards even for the most egregious mistakes. But the debate shouldn’t end there. Both parties should find common ground on innovative approaches that not only reduce jury awards but also help doctors and hospitals correct underlying problems.
Those approaches — now being tested in more than 20 locations — start with the recognition that the current system has several flaws. The most obvious is that the threat of frivolous lawsuits drives up doctors’ insurance costs, which get passed on to patients. Fear of suits also causes doctors to practice “defensive medicine,’’ ordering unnecessary tests just to prove that they covered all the bases. Meanwhile, the current system fails to provide any relief to many patients who suffer from medical mistakes but are never informed of them or cannot find lawyers to represent them. Finally, there is little impetus for doctors or hospitals to look at the causes behind errors and correct them.
All these problems persist even in the more than 30 states that have already capped damage claims. That is one reason that last year’s health reform law included $50 million for malpractice reform pilot projects. The new approaches ask doctors and hospitals to acknowledge mistakes, offer immediate compensation to patients, and then explore ways to prevent errors in the future. When given apologies and reasonable settlement offers, most patients choose not to sue, sparing enormous litigation costs.
To provoke action in Congress and state legislatures, Obama should sponsor a forum on medical malpractice in Ann Arbor, Michigan, where for 10 years the university’s health service has been a leader in acknowledging errors, correcting them, and compensating patients — without litigation.