So here's the dilemma: On one hand, doctors believe—despite some evidence to the contrary—that there are too many frivolous lawsuits, and they respond by ordering a lot of unnecessary testing and treatment. It's probably impossible to change their perception, which arises from some well-publicized, if uncommon, bad decisions. As a result, their solution is to make it harder for patients to sue. (That's the general position taken by Republicans.) On the other hand, patients often get harmed by negligent medical care, and lawsuits are their only way to fight back. Doctors are already getting away with lots of negligence, so making it harder to sue seems unfair. (That's the Democrats' view.)
There's a more constructive way to frame the debate about medical liability: How can we design a system in which more patients harmed by negligence get timely, reasonable compensation, but in a manner that also protects doctors and encourages them to learn from their mistakes? In this regard, the current system fails miserably and is best compared to a casino. A tiny number of injured patients win huge jackpots while the majority gets nothing, in a gaming process rife with outrageous overhead costs (roughly half of all malpractice costs go to lawyers, experts, and the court system).
Damage caps may protect doctors from lawsuits, but they do little to help patients. There are other, much better, ideas out there, and they deserve bipartisan support since they allow everyone—doctors, patients, and taxpayers—to win. Michelle Mello, a health law professor at the Harvard School of Public Health and a leading researcher on medical liability, outlines three examples: promoting "disclosure-and-offer" programs in which health providers are incentivized to fess up quickly to mistakes and offer prompt compensation; creating neutral tribunals that evaluate evidence and recommend damages; and proclaiming federal "safe harbors" where doctors are immunized from lawsuits if they adhere to evidence-based practices, as Dr. Merenstein did.
Take "disclosure-and-offer" programs. Back in 2006, a pair of freshman U.S. senators took to the pages of the New England Journal of Medicine to promote a federal program that would help balance patient safety and compensation. "At the time of disclosure, compensationfor the patient or family would be negotiated, and procedureswould be implemented to prevent a recurrence of the problemthat led to the patient's injury," they explained, pointing to pilot data in Michigan that showed big drops in subsequent lawsuits and time to complaint resolution. While Barack Obama and Hilary Clinton's bill never became law, the current version of the House's health reform bill does allow for state-based initiatives like the Michigan plan. The basic concept makes a lot of sense: Patients often want a prompt apology, some reasonable monetary compensation, and hope that others won't experience the same mistakes.
The second model, essentially the same way Americans now deal with vaccine-related injuries, involves "no-fault" tribunals. More than 30 years ago, for example, New Zealand replaced its tort-based system with a government-funded program called the Accident Compensation Corp., which handles about 2,000 medical injury claims from a population of 4 million people a year and pays compensation to patients in roughly half of them. Today, the program's overhead costs are less than 10 percent. On the back end, these claims can also lead to broad-based, systematic changes to prevent future errors.
Like almost one-third of all doctors, I have a family member who was injured by medical negligence. Some time after my father died because he was misdiagnosed initially, I called the responsible doctor—for what reason, I didn't really know at the time—but never heard back from him. My family didn't sue. But surely there's something wrong when a lawsuit is the only way for patients to get someone to answer for mistakes.