Medical Malpractice and Health Care (Video)

( NY Times) Hoping to enlist support for his campaign for health care reform, President Obama told the American Medical Association this week that he would work with doctors to limit their vulnerability to malpractice lawsuits. That was a reasonable offer — provided any malpractice reform is done carefully.

The current medical liability system, based heavily on litigation, has a spotty record. It fails to compensate most victims of malpractice because most never file suit. When cases reach the courts, some juries do a decent job of sorting out whether there was negligence or preventable error; others are swayed to grant large damage awards based more on the severity of a patient’s injuries than on clear evidence of negligence.

Scott Drake interviews medical malpractice expert Barry MacBan in this video

Mr. Obama did not specify which malpractice reforms he favors, but he wisely rejected placing caps on malpractice awards, the preferred solution of Republican tort reformers. Such caps would be unfair to people grievously harmed by physician errors who need substantial compensation to live with their injuries.

There is a variety of ideas worth exploring. Some analysts have called for setting up tribunals of neutral experts to hear malpractice claims. Others suggest requiring mediation, or granting doctors presumptive protection in malpractice lawsuits if they have followed recommended clinical practice guidelines, or encouraging doctors to confess error promptly, apologize to patients forthrightly, and offer them fair compensation for their injuries.

Whether malpractice reform would save much money is unclear. Malpractice claims do drive up insurance premiums paid by doctors in some high-risk specialties, such as obstetrics and neurosurgery. Those costs are presumably passed on to patients. There is also concern that doctors may overprescribe costly tests and treatments to avoid possible lawsuits. But the evidence is inconclusive, according to the Congressional Budget Office, that doctors engage in enough “defensive medicine” to have a significant impact on costs.

The office estimates that caps on damages would ultimately reduce malpractice premiums for medical providers but would have a “relatively small” impact on total health spending, reducing it by less than half a percent. Even that could save billions of dollars a year, which is not trivial. But malpractice claims are probably not a major cost driver.

Still, most doctors are convinced that malpractice suits are unfair and burdensome, so it is worth exploring the issue, if only to gain their help in reforming the health care system. Whatever the alternative — tribunals, mediation — patients must retain the right to go to court and seek higher damages than they have been offered. That is the only way to deter negligence by doctors, hospitals and other health care providers.