New approach to malpractice reform

A “Patients Compensation System,” if implemented, would eliminate “jackpot justice” in Georgia and Florida, according to Wayne Oliver, executive director of Patients for Fair Compensation and former vice president at the Center for Health Transformation.

There are four pieces of legislation being considered in Florida and Georgia. Oliver reports that the Georgia General Assembly will be holding hearings to gauge public support for creating the system.

“Business leaders and hospital administrators are intrigued by the idea of eliminating medical malpractice lawsuits as we know them,” says Oliver. “Hospitals want to avoid the appearance of impropriety, and doctors want to practice without looking over their shoulders to ensure a trial lawyer isn’t lurking in the shadows.”

If a child presented with a broken wrist from a fall injury and without any other symptoms, the standard of care would be to get an X-ray of the wrist, says Oliver, but defensive medicine might make some physicians feel compelled to order a head magnetic resonance imaging (MRI) and full-body CT scan in this situation. “Physicians are ordering thousands of dollars of tests, not to add any treatment value or improve the potential outcome, but strictly to protect themselves from medical malpractice lawsuits,” says Oliver.

Few legitimately injured patients receive any compensation at all, and those who do typically pay half to their attorney, adds Oliver. “If we were to design a system today that would help make patients whole after a medical injury, no rational person would design the tort system we have in place today,” he says.

The Patient Compensation System would allow a physician who has committed an avoidable medical error to disclose it and help that patient navigate the system and obtain appropriate compensation, he explains, as follows:

• Once an error or avoidable medical injury occurs, a patient advocate would be appointed to help the patient navigate the administrative solution.

• The Patient Compensation System medical director would review the medical record and interview all relevant parties.

• If the medical director concludes that the error was avoidable, a panel of physicians would review the redacted medical record and determine if, in fact, the error was avoidable.

• If the medical review panel believes that the injury was avoidable, they would send the application to the compensation department for payment.

Caps aren’t sufficient to address the problem because these don’t stop physicians from being sued, according to Oliver. “Texas has done an excellent of addressing traditional tort reform, with caps,” he says. “However, if you ask Texas physicians, ‘Are you practicing less defensive medicine?’ they will say no. The reason is they still get sued.”

The Patient Compensation System would allow injured patients to receive compensation within weeks instead of years, he says, and would allow more patients to be eligible for compensation.

“Right now, trial lawyers tell us they are not taking cases unless there are economic damages in excess of $500,000, just because of the capital outlay that they have to invest to get a case underway,” Oliver says.