Tort Reform: Finding the Middle Ground and Abandoning the Blame Game: Part II of a 2-Part Series
Article Outline
State governments have led the way with tort reform, but the proposals that have taken hold in many states and received support from the current White House strike some experts as counterproductive.
“I start from the premise that if you’re going to change the system, it ought not to be just in favor of one side, the way most of these reforms that have been enacted and proposed are,” says Jeffrey O’Connell, JD, professor of law at the University of Virginia. “If you go back to the first great tort reform, which was workers’ compensation, it was balanced reform. It said, ‘We’re going to pay employees injured on the job more readily, without a lot of waste and delay, but we’re not going to pay for their full common-law damages. We’re only going to pay them for their medical expenses and wage loss, and not for pain and suffering.’ That was a reform that said both sides had to pay for the reform, and both sides got some advantages. I think any reform that says ‘let’s put all the burdens on one side and leave the other side unscathed’ is simply unfair and would probably be perceived that way and therefore get watered down.”
Caps, he adds, create alarming inequities between patients whose losses fall above and below the arbitrary line. “If you’re injured so your damages are less than $500,000 in pain and suffering, you get the full payment. But if you’re paralyzed, permanently and totally paralyzed, you’re the one who faces the cap! I mean, that’s a hell of a way to reform something: to say ‘Let’s punish the people who are the most needy.’”
Give a Little, Get a Little
The only solution to the current logjam, O’Connell believes, is for all interested parties to be willing to give something up. His early offer proposal asks plaintiffs to sacrifice noneconomic damages in order to be compensated faster, with less uncertainty about whether they will receive relief at all. A defendant, in turn, would sacrifice by making settlements in cases where it believes it has done nothing wrong, but where its calculated exposure is sufficient that a jury might decide otherwise. Pain and suffering payments and transaction costs, he believes, are the chief obstacles to a fairer system.
“If you cut out those 2 variables, you will pay people on average about 2½ years faster than they’re paid today, and you would eliminate what I think is the cruelty of the present system for both sides: this prolonged, bitter, shin-kicking litigation, which is only serving the interest of the people who run it.”
No Sea Change
As an architect of innovative insurance approaches in a number of fields (including America’s first automotive no-fault system) and a close student of related systems overseas, O’Connell believes that drastic changes in both America’s litigious culture and American medicine’s habitual conservatism are unlikely, in part because cost projections are uncertain.
“Let’s take the dollars we’re now spending, and not spend any more dollars, because nobody has to make an offer unless they save money doing so. But we give an enormous incentive to pay people if it’s economically feasible to do so, and we put an enormous burden on the plaintiff to accept that.”
A reform modeled on a historically successful American program, he believes, is more equitable than caps and more achievable than adapting Swedish or New Zealander models (which function smoothly, O’Connell and others note, in part because those nations’ social safety nets already protect citizens against many financial and medical risks). “We didn’t say in workers’ compensation, ‘Let’s change the whole structure of employer/employee relations.’ … We did know the tort system was cumbersome, and we could change it. The tort system is relatively simple to change, and that’s the only way we’re going to make progress on medical malpractice.”
For both pragmatic and principled reasons, Robert L. Wears, MD, MS, professor of emergency medicine at the University of Florida, also views conventional tort reform skeptically.
“I know physician groups have supported those caps,” he says, “but I think tactically it’s a bad position to be in to say we’re going to do things that take money out of injured people’s pockets. I think we all agree that there’s lots of people getting rich off the system, including our friends the defense attorneys.” To the extent that tort reform battles are really between legal and insurance organizations, he finds, “you could almost say that physicians and patients are serving the role of hostages. By keeping them both hostage, [the other interests] can milk more money out of the economy into this industry, with the tacit unspoken collusion that the insurance company gets some and the plaintiff’s bar gets some.”
Lucian Leape, MD, adjunct professor of health policy at the Harvard School of Public Health and a specialist in the control of medical error, also sees the political alignments of the current tort reform debate as contrary to medical values.
Is Capping Cruel?
“There’s no question that capping does reduce total expenditures, and if that’s your primary objective because you think it’s driving doctors out, then it has some rationale. The danger is it tends to hurt most the people who need it most. I think people who have serious damage, crippled for life [with] lifetime suffering, perhaps deserve more than $250,000.”
In his ongoing studies of medical errors and their aftermath, 1, 2, 3 “what precipitates a suit is 1 of 2 things: substantial economic loss, which is a major problem for the person, and resentment and anger over the way they’re treated … . The evidence is becoming quite clear—it’s not just a matter of faith but a matter of fact—that when patients are given an honest and full explanation, when the caregivers take responsibility, and when they apologize when they’ve made a mistake, patients are very much less likely to sue.”
Subjective variables such as the quality of interpersonal communication may outweigh perceptions of technical negligence in these situations. 4, 5 The current liability system, Dr. Leape and others have found, militates against candor, exacerbating these resentments. 6
In emergency medicine, where personal relationships with patients are rare and patients’ identities may not even be available, it is all the more essential to counteract the impression of impersonality. Emergency medicine may also be an appropriate laboratory for experiments that take a more realistic view of the appropriate location of responsibility and liability.
“Modern medical care … is a team effort,” Leape stresses, nowhere more so than in the ED. “A physician is no longer in complete control of everything, and that’s a whole other reason why the physician shouldn’t be held solely liable for everything that happens.”
The Dana-Farber Institute responded to a high profile dosing error tragedy in the mid-1990s not by fingering individuals but by instituting consistent procedural safeguards. “They dramatically reinvented themselves,” reports Leape. “They put in an incredible amount of safety practices and changed their culture and work as teams and involve patients in their care—and they now have a medication error rate that’s 1 in 10,000. In an average hospital it’s about 4 in 100.” An institutional culture of error prevention, attentiveness, and contrition is now an explicit policy component throughout the Harvard hospital system. 7
Error reduction strategies, both in medicine and in other high-risk professions such as aviation or the military, are increasingly based on analysis of systemic, not individual, behavior. 8 Though personal responsibility will always be an indispensable value in medical practice, there are substantive conceptual discrepancies between an exclusive focus on individual negligence (which cognitive psychologist James Reason 9 calls the “person approach,” contrasted with the “system approach,” and Wears has termed the “bad apples” or “not me” assumption) and the process analyses that underlie effective error reduction.
Failure of Finger-Pointing
“If you wanted to set up a really accountable system,” Wears says, “rather than what we have now, which is aimed at finding the erring individual, we’d want a system that more concentrated on developing explanations of how things went wrong, [and] publicizing those explanations so that everybody can learn from them … and that looks beyond just the individual factors.”
Wears cites examples like the Exxon Valdez incident to illustrate the insufficiency of any search for a sole culprit: blaming the captain’s inattention and personal battles with alcohol was beside the point, because backup systems should have been in place to allow for the possibility of incapacity (ship captains, after all, are frequently of myocardial infarction age). “If your investigation says somebody was careless, they made an error,” Wears concludes, “then what that really means is that you haven’t actually done an adequate investigation.”
In the shadow of the tort system and the whole adversarial legal culture, premised entirely on individual fault, most medical organizations are entangled in an accountability mechanism that is guaranteed to fail: it lacks independent inquiry procedures, requires internal secrecy, rewards scapegoating (occasionally lavishly), and emphasizes assigning blame after the fact over establishing preventive measures. If the incentives and consequences generated within this framework have become measurably perverse, and the only politically probable reform of it is a one-sided and arguably counterproductive Band-Aid, perhaps the ensuing pessimism voiced by many of its best-informed commentators reflects the inherent impossibility of deriving rational results from irrational foundations.
In the meantime, some of those commentators look with guarded hope toward demonstration projects at the level of states, specialties, or the academic sector. Funding to test such innovations under the recent federal Enzi-Baucus bill, watchdog group Common Good’s Paul Barringer points out, would have been about $5 million for 10 projects over 5 years—a pittance compared with the amount of waste the current system routinely produces.
References
- . Error in medicine. JAMA. 1994;272:1851–1857
- Berwick DM, Leape LL. Reducing errors in medicine: It’s time to take this more seriously. BMJ. 199;319:136-137.
- . Institute of Medicine medical error figures are not exaggerated. JAMA. 2000;284:95–97
- Physician-patient communication: the relationship with malpractice claims among primary care physicians and surgeons. JAMA. 1997;277:553–559
- Patient complaints and malpractice risk. JAMA. 2002;287:2951–2957
- Does full disclosure of medical errors affect malpractice liability?. Joint Commission Journal on Quality & Safety. 2003;29:503–511
- When things go wrong: responding to adverse events. A consensus statement of the Harvard Hospitals. Cambridge: Massachusetts Coalition for the Prevention of Medical Errors, March 2006.
- Human error in medicine: promise and pitfalls. Ann Emerg Med. 2000;36:58–60(part 1), 2000;36:142-144 (part 2)
- . Human error: models and management. BMJ. 2000;320:768–770
PII: S0196-0644(07)00606-3
doi:10.1016/j.annemergmed.2007.05.008
