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?

tort reform/medical malpractice liability reform

Caught part of the interview on NPR of Rahul K. Parikh, M.D., a pediatrician in my neighborhood. From there, I found his salon.com post, a post I so appreciated and generally agreed with. Dr. Parikh, both in his post and in his interview, addresses "defensive medicine" and its focus on blame. He, like so many other authors and thinkers on this topic, does not discuss how adverse medical events are handled in our health care systems BEFORE litigation, i.e. has there been disclosure, meeting with patients/families, opportunity for patients/families to offer first-hand information that could improve patient safety for future patients, apology and/or offers of compensation, if appropriate.

We hear statistics about "frivolous lawsuits". I'm not sure what that means, who is making that determination, if anyone, that a percentage of med mal cases filed are "frivolous". Are these cases that may not involve compensable injury but involve injured patients or their families who are unable to get any answers, are unable to get any health care provider to talk to them? Does that make their claims "frivolous"?

Can we START this conversation with the response of the health care providers to adverse medical events, completely aside from concepts of error and/or negligence? Why don't we try to establish criteria to determine if conversations between health care providers and patients/families after adverse medical events are improving patient safety practices for future patients? Why don't we start keeping statistics/anecdotes on how many medical malpractices cases are filed after disclosure, after conversation and open exchange, after listening to patients' experiences?

I think the way to change the conversation, expand the conversation, is one person at a time. As long as the conversation continues to blame the lawyers, we can't move forward. Like the conversation about caps on damages, the conversation about "defensive medicine" is not helping the patients. Both physicians and attorneys are healers, in my opinion, so let's get back to healing: healing the patients AND the health care providers, the "second victims". Let's start with the language of healing.

Who's with me on this?