A three-person panel—a medical expert, a lawyer and, I believe, a judge—determined whether each case had merit. They would either rule that it had merit, that it did not have merit and should be discontinued, or made no finding. If there was no finding (no clear decision) the case would go forward as normal. However, if a case was found either to have merit or not have merit, the party in opposition to the ruling would have to pay the legal costs of the other side if they chose to go forward and lost. For example, if the panel ruled that a case did not have merit but the litigant chose to bring the suit to trial anyway and lost, they would have to pay the physician’s court costs, and vice versa. That is how it works in Great Britain.
The ongoing health care debate will affect every company in the country. Health care costs will continue to have sizable impacts on bottom lines and every employee. Given all the political showmanship and partisan posturing on both sides of the aisle, however, it can be difficult to get a clear look at the many issues that comprise the overall health care system.
To add a little clarity to how medical malpractice reform fits into this whole picture, I reached out to Anthony J. Bonomo, CEO of Physicians’ Reciprocal Insurers, by email with a few questions.
Below is our exchange.
RMM: When addressing med mal reform, President Obama has said that he will not consider capping malpractice awards as a measure of reducing the cost of health care.
What stands to be gained or lost by capping malpractice awards insofar as it affects the availability and quality of health care?
Bonomo: Many people believe that a cap on pain and suffering awards will lead to reduction in overall medical malpractice insurance costs to doctors, and those savings will transfer to overall health care costs. I have not read any studies that convince me this is true. Some states have had reforms that abandoned caps, and other states have seen caps work for a while but then the rates creep up again. Caps might be a component of reform, but they are not the total answer. Remember that caps only affect cases that are tried to conclusion. The majority of cases are settled before even going to court, so a cap would not have any definable impact. One potential positive is that caps could help make pain and suffering awards less arbitrary.
RMM: One alternative being considered is to have malpractice suits go under review by medical experts to review their credibility before they go to court. Do you think this could be a workable approach? And how workable? Would the number of cases that still make it to litigation present a large risk in terms of increasing the overall cost of health care?
Bonomo: I believe an expert review is very workable. In fact, we had it in New York state years ago. A three-person panel—a medical expert, a lawyer and, I believe, a judge—determined whether each case had merit. They would either rule that it had merit, rule that it did not have merit and should be discontinued, or make no finding. If there was no finding (no clear decision) the case would go forward as normal. However, if a case was found either to have merit or not have merit, the party in opposition to the ruling would have to pay the legal costs of the other side if they chose to go forward and lost. For example, if the panel ruled that a case did not have merit but the litigant chose to bring the suit to trial anyway and lost, they would have to pay the physician’s court costs, and vice versa. That is how it works in Great Britain.
The panels did three things: 1. They prevented bad lawsuits from being filed. 2. They prevented bad suits from clogging the system, due to the financial risk. 3. Their findings helped cases reach settlement more quickly and easily
I found the panels to be very productive in bringing about judicious, fair resolutions to cases. Unfortunately, they were discontinued due to, I believe, the backlog of cases that ended up stretching several years. Again, the problem is not the number of cases that make it to court. It’s the number of suits that are filed, and the panel had a positive impact in reducing this number.
RMM: Another approach is encouraging mediated arbitration rather than lawsuits to settle malpractice issues. How might such an approach work in an enforceable framework? Does the emotional nature of many malpractice suits really lend itself to arbitration?
Bonomo: We have arbitration right now in New York that is effective, because it is legally binding. I find that cases resolved through arbitration are very similar to the results of cases that go through the tort system.
One of the most challenging issues in malpractice lawsuits is their emotional nature. Sometimes jurors have a tough time separating their very human sympathy from the facts of the case when a person’s pain and suffering is very real, but is not the result of physician error.
RMM: Medical malpractice is often the focus of health care cost reform because it’s an easy target that people have strong opinions about. But in the grand scheme of things, in terms of truly overhauling how health care is provided and delivered to the public, is the matter of malpractice litigation a primary challenge to overcome?
Bonomo: We really don’t know how much medical malpractice—and the fear of malpractice lawsuits—contributes to overall health care costs. The thrust of medical malpractice reform should be to make sure anyone injured can be compensated fairly, and at the same time ensure that doctors are not overpaying. If it is shown that fear of medical malpractice lawsuits leads to costly, unwarranted procedures, and that reforms can limit this practice while still ensuring patient safety and quality of care, then any reforms should contribute to a reduction in health care costs.
RMM: Many critics of a national health care plan note that a 50-state approach would provide for many different “laboratories” in which different solutions can be devised. What particular successes have you experienced in New York state that might speak to the notion of a 50-state solution?
Bonomo: This is really the current approach: each state is developing its own solutions. I believe that the states should learn from each other but, because every state’s laws are unique, you can’t just apply what works in one state to another and expect the same outcome.