Legislative Options Involving Medical Malpractice: The Way Forward

I've recently read of H.R. 1031, reintroduced in the House of Representatives. This legislation would cap non-economic damages at $250,000 and limit attorneys fees. I hope that Congress plans to hold hearings on this legislation because of its great potential for expansion to address the causes of medical malpractice, as well as the result (litigation and damages). If physicians participate in disclosure (continuing informed consent), accept responsibility (if error has occurred), offer fair compensation (as appropriate), and learn from the patients' experiences to improve healthcare for future patients, there would be very little need for attorneys. Therefore, physicians' (and their insurers) concerns with damages and attorneys fees arising out of the litigation process could be, to a great extent, put to rest. Physicians communicate with their patients, trust is maintained (or, at least, not shattered), resolution occurs, the patient is heard, and impovements are proposed and take place.

I know the goal of all of us is patient safety, as then-Senators Clinton and Obama noted in their MEDiC legislation and their NEJM article. Using that goal as the jumping-off place, let's look at the entire picture involving medical error, rather than just look at the result. I know this sounds like a fairy tale, but no more of a fairy tale than attorneys-are-to-blame-for-everything. I also know that multi-layered medical error situations are very complicated, with many issues to address and many parties and participants.

Involving physicians' responses to possible medical error will protect and support both the physicians and the patients. It will take us away from blame and toward the responsibilities of all parties. It will give us an opportunity to present to Congress the substantial numbers of physicians who take part in these practices and are not sued and the tremendous savings associated with expeditious, non-adversarial resolution.

Isn't this time, place and legislation (H.R. 1031) an ideal place to start shifting and expanding the conversation to bring fairness, respect, and responsibility to all involved in medical error situations?