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Malpractice fix

Everyone wants to untangle the medical malpractice mess - but balancing justice and medicine may be a risky procedure

WITH THE POSSIBLE exception of trial lawyers, most everyone involved with medical malpractice--physicians, patients, insurers, hospitals--complains that the system is seriously flawed.

For all the headlines trumpeting multimillion-dollar verdicts--such as the nearly $40 million that a Middlesex County jury awarded this week to the family of a Dracut boy born with severe brain damage in 1996 after a traumatic delivery at a Lowell hospital--most injured patients don't even make it into court, let alone receive damage awards. Studies have shown that as few as 2 percent of patients injured through medical errors even file claims, and that fewer than 7 percent of all malpractice claims reach a jury verdict. Of those cases that do reach a verdict, defendants win 4 out of 5 times. And actual compensation can take from 5 to 10 years from the time of injury.

The current system also seems unable to reduce medical errors. According to a 1999 report by the Institute of Medicine, the most recent comprehensive report available, as many as 98,000 patients die of preventable medical mistakes each year. Meanwhile, physicians complain about the damages to their reputations and psyches of being sued (not to mention ever-rising malpractice premiums), while patients complain about the secrecy engendered by doctors' fear of litigation.

President George W. Bush's proposal to cap pain and suffering awards at $250,000, which is currently stalled in Congress, would not solve these underlying problems. But the advocacy group Common Good--in conjunction with the Harvard School of Public Health--is taking a look at a different reform possibility: throwing the system out entirely, and replacing it with a new kind of special malpractice court.

Their model would replace juries composed of average citizens with an administrative panel presided over by judges with some medical expertise, and would replace the dueling expert witnesses paid by each side with ''neutral" experts paid by the court. Instead of rolling the dice in today's system, some injured patients could be automatically reimbursed for lost wages, medical costs, and additional fees without having to prove negligence.

Similar systems have been implemented in several countries, including Sweden and New Zealand. And it has already been discussed here in Massachusetts, where both houses of the state Legislature voted last November to clear the way for a commission to look into the feasibility of a medical malpractice court.

So far, the Common Good project has won endorsements from some 10 university presidents, 11 medical school deans, and 6 current or former heads of health care policy and patient safety organizations, as well as bipartisan political support from players ranging from Senate majority leader (and surgeon) Bill Frist, a Republican, and former House majority leader Newt Gingrich to the left-leaning Progressive Policy Institute. But there is hardly agreement among consumer advocates and legal experts that their ideas are workable, or even desirable. To some critics, many of Common Good's goals could be achieved by reforming--not ending--the current jury-based system. To others, their proposals might end up replacing a random and expensive system with one that is corrupted by politics and presided over by professionals who might be unresponsive to the community's sense of justice.

Philip K. Howard, the Manhattan-based founder of Common Good and the author of ''The Death of Common Sense" and ''The Collapse of the Common Good," believes that reform is urgently needed to free citizens and government actors from the excessive regulations of a legal system run amok in education and civil justice as well as health care. ''The health care system is sick," Howard, who is also a practicing corporate attorney, asserted in a recent interview. ''It's increasingly unaffordable and erratic--it is infected with distrust and fear of the legal system, and that exacerbates the problems of cost and quality."

According to Howard, one of the chief problems is that juries must make decisions about ''standard of care" (the accepted norm from which a negligent doctor may have deviated), an area about which most jurors know little. And jury decisions apply only on a case-by-case basis. As a result, pain and suffering awards for the same injuries vary widely, while studies show that even ''hard" economic damage awards (such as lost wages and medical costs) can differ substantially as well. ''There is a sort of lottery aspect to damage awards that is unfair to most plaintiffs," says Howard. ''There's no horizontal equity across the line."

As a first step, the Harvard/Common Good project is devising a ''schedule" of specific injuries that will automatically be compensated at a particular level, whether or not anyone is found negligent. Dr. Troyen Brennan, professor of Health Policy and Management at Harvard School of Public Health and a member of the project, explains, ''We'd be able to say, 'If this happens, we pay, no matter what."' This, Brennan argues, would make it easier for more victims of malpractice to receive settlements--particularly those with less severe injuries, who go largely uncompensated today.

Such a reform might also address another problem: health professionals' fear of reporting errors that might improve patient safety but that could also be used against them in a lawsuit.

Michelle Mello, associate professor of health policy and law at Harvard School of Public Health, is studying the systems in Scandinavia and New Zealand, where injured patients work with doctors to file claims for compensation free of charge, and all care-providers are required to maintain patient insurance to cover costs of compensation. ''Our hope," says Mello, ''is that if we create a system that isn't focused on negligence and blaming, and acknowledges that things that go wrong are not the fault of individual doctors but rather of whole systems of care that go awry or aren't well designed, doctors would be more willing to talk about errors and to learn from them."

Not that this candor will necessarily come cheap. An increase in the number of medical errors reported, and compensated, could drive overall malpractice costs up as much as fourfold, according to Harvard's Brennan. But the Common Good/Harvard team sees this as an opportunity to become more efficient in the way we as a society award compensation and more systematic in our decisions about how much of the cost of malpractice should be borne by society and how much by injured patients themselves.

The proposals are not without their critics. Some point out that the group's goals could be accomplished without junking the current jury-based system entirely. ''For example," says Catherine Struve, a professor at the University of Pennsylvania law school who has studied malpractice reform, ''scheduling damages is something you could easily do within the current civil justice system."

As for jurors' lack of medical expertise, jury advocates say this is precisely their virtue. ''The great feature of the jury is that they are not hardened or callous," says Nancy Marder, a professor at Chicago-Kent College of Law who has studied the US jury system. ''When the jury is working well, it represents a fair cross-section of the community, which we rely on for common sense judgments. . .. That seems better than relying on an elite group who all have similar training and biases that go along with that training--whether in law school or medical school."

Indeed, even some consumer advocates who are generally predisposed toward reform ask just who will benefit most from a system like the one promoted by Common Good--patients, or doctors and insurers?

Barry Boughton, a staff attorney with the consumer advocacy group Public Citizen who recently attended a symposium sponsored by the Common Good/Harvard project, questions the idea that awards to the most severely injured should be reduced in order to compensate more patients. ''While I'd like to see more people compensated," says Boughton, ''it just seems strange that you'd want to do that at the expense of the most seriously injured. I think their schedule of benefits is really designed to help the insurance companies underwrite the cost of the system by making it more certain."

Professor Charles Silver of the University of Texas School of Law wonders why, when defendants already win 75 to 80 percent of cases, doctors and insurers are so keen to reform the system. ''How much better do they think they are going to do? I think what's really going on is that they are trying to capture the judges," says Baker. ''Doctors' groups and insurance companies and hospitals and other health care providers who get sued will have very significant interests to lobby the people who appoint judges or to support candidates should there be elections for those positions."

University of Connecticut School of Law professor Tom Baker, author of the forthcoming book ''The Medical Malpractice Myth" (Chicago), takes the argument even further. In a recent e-mail, he criticized medical courts as ''part of the same 'doctor knows best' approach to malpractice that has produced the error-ridden system that we have today. It's an effort to neutralize malpractice litigation, the institution that deserves almost all the credit for bringing medical malpractice to light."

(While Baker dismisses the idea of an overwhelming malpractice crisis, he does have his own suggestions for reform, including mandatory government-enforced disclosure of medical errors and no-fault compensation for moderate injuries, among other provisions.)

In the end, Common Good's proposals may be valuable simply for the serious debate they prompt. And Howard says the group welcomes the criticism: ''We need to be able to respond to questions and arguments against it--to make a compelling case that, one, the current system doesn't work very well, and two, what we are trying to devise has a chance of working hopefully much better, and therefore we should try it out."

Kristin Eliasberg has written about legal issues for The Boston Globe and The New York Times.

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