How to address the flawed medical malpractice system

How to Address the Flawed Medical Malpractice System in the U.S?

Providers of medical record review for attorneys handling medical malpractice litigation, know how frustrating the process can be. Here we look at some ways in which the present inadequate medical malpractice system can be addressed.

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Over the years of providing medical record review for attorneys handling medical malpractice litigation, we have come to understand that medical malpractice allegation instils confusion, fear and anger in healthcare providers. This topic is frequently discussed among political leaders, non-profit groups, payers, and policymakers. Medical negligence cases have considerable impact on healthcare providers at all levels, doctors, patients and lawyers. To ensure patient safety and reduce healthcare costs, a robust medical malpractice system is vital. The current medical malpractice system in the United States is however flawed, as pointed out in a Huffington Post article.

The problem is that most malpractice cases don’t even go to court. Moreover, the patient who is the victim does not always get the amount due because the amount of money attached to medical malpractice settlement is divided among the plaintiff, lawyers, courts and testifying experts. The abovementioned article highlights some interesting statistics that reveal the exorbitant costs associated with malpractice litigation. 

63% of medical malpractice claims filed were associated with medical errors. 37% were not associated with errors. Nevertheless, of those, 28% still got compensation at an average of $313, 205.

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73% of malpractice claims associated with medical errors settled, with an average compensation of $521, 560.

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54% of expenditures go towards litigation over these medical errors and compensation for them.

With 90% or more of medical malpractice cases getting settled out of court, the objectives of holding doctors responsible for the poor health outcome and removing bad doctors cannot be fulfilled. Not every doctor who has been sued for malpractice has committed a medical error. Some medical lawsuits are filed for administrative oversights such as failing to renew their licenses on time. The American Medical Association says that in cases where doctors are sued for malpractice, more than 65% of claims are dropped or dismissed.

Let us look at the problem with the system. To win a medical malpractice lawsuit, a patient must prove that substandard medical care resulted in an injury. He/she must demonstrate that: 

The doctor was actively treating the patient

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There was a breach in the professional duty the doctor owed the patient, i.e. a deviation/departure from the expected standards of care

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An injury was caused by this breach

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

Damages resulted from this negligence on the part of the treating doctor.

The physician is expected to adhere to a certain standard of care which may not apply in all cases. This forces many physicians to order tests or prescribe medications or follow a course of treatment that they know is unnecessary. They do it nevertheless to avoid any instance of malpractice. This leads to valuable healthcare dollars being spent unnecessarily. This kind of “defensive medicine” practice is wasteful and may even cause harm ultimately. Sometimes even in the absence of a medical error, plaintiffs and their lawyers may receive compensation.

Observers and experts in the field advocate a no-fault system in lieu of the present medical malpractice system. Such a system could be beneficial and there would be enough money to help people who are real victims of medical harm and need compensation desperately. The important thing is that very few doctors intentionally harm people. The present system is not effective in segregating the bad doctors. Experts like Dr.Jerry Hoffman point out that the U.S. needs a system that provides help for people who have suffered medical harm and are financially in big trouble because of it. The system should be an independent one that can identify where there is bad care so that we can be open about it and rectify it as required.

A genuine no-fault system would eliminate any determination that a party was responsible and compensate based merely on the fact of injury. It would remove the plaintiff’s burden to establish negligence. Instead, it would apply a legal standard such as avoidability that comes in between negligence and strict liability. This system is beneficial for plaintiffs in that while their burden of proof would be lower and easier to prove, the awards would be more predictable, smaller, and more reasonable.

Apart from the no-fault system, other reform ideas include: 

Reducing the plaintiff’s burden of proof from negligence to avoidability

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Instituting special procedural and substantive reforms to contain costs

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Taking the claims out of the judicial system and locating them in an administrative or health court

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Early offer – under this proposal, after a medical injury a physician would be allowed to make an offer of periodic payments for net wage and medical losses, and a small amount of attorney’s fees. If the plaintiff declines the offer and proceeds to file a case, he/she would have a higher burden of proof imposed at trial. With such a proposal, there is scope for voluntary acknowledgement of injury and the opportunity for apology and reconciliation.

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Medical record review companies serving physicians and lawyers know there is no magic wand to address the current state of medical malpractice. However, the aim of reform efforts should ideally aim to establish a system that can adequately compensate injured patients, remove frivolous claims, and eliminate those who are striving to abuse the system by filing opportunistic claims that harm the entire system.

www.mosmedicalrecordreview.com

8006702809