Medical Error Reduction and Tort Reform through Private, Contractually-Based Quality Medicine Societies

Abstract

The current medical malpractice system is broken. Many patients injured by malpractice are not compensated, whereas some patients who recover in tort have not suffered medical negligence; furthermore, the system's failures demoralize patients and physicians. But most importantly, the system perpetuates medical error because the adversarial nature of litigation induces a so-called "Culture of Silence" in physicians eager to shield themselves from liability. This silence leads to the pointless repetition of error, as the open discussion and analysis of the root causes of medical mistakes does not take place as fully as it should. In 1993, President Clinton's Task Force on National Health Care Reform considered a solution characterized by Enterprise Medical Liability (EML), Alternative Dispute Resolution (ADR), some limits on recovery for non-pecuniary damages (Caps), and offsets for collateral source recovery. Yet this list of ingredients did not include a strategy to surmount the difficulties associated with each element. Specifically, EML might be efficient, but none of the enterprises contemplated to assume responsibility, i.e., hospitals and payers, control physician behavior enough so that it would be fair to foist liability on them. Likewise, although ADR might be efficient, it will be resisted by individual litigants who perceive themselves as harmed by it. Finally, while limitations on collateral source recovery and damages might effectively reduce costs, patients and trial lawyers likely would not accept them without recompense. The task force also did not place error reduction at the center of malpractice tort reform -a logical and strategic error, in our view. In response, we propose a new system that employs the ingredients suggested by the task force but also addresses the problems with each. We also explicitly consider steps to rebuff the Culture of Silence and promote error reduction. We assert that patients would be better off with a system where physicians cede their implicit "right to remain silent", even if some injured patients will receive less than they do today. Likewise, physicians will be happier with a system that avoids blame-even if this system placed strict requirements for high quality care and disclosure of error. We therefore conceive of de facto trade between patients and physicians, a Pareto improvement, taking form via the establishment of "Societies of Quality Medicine." Physicians working within these societies would consent to onerous processes for disclosing, rectifying and preventing medical error. Patients would in turn contractually agree to assert their claims in arbitration and with limits on recovery. The role of plaintiffs' lawyers would be unchanged, but due to increased disclosure, discovery costs would diminish and the likelihood of prevailing will more than triple. This article examines the legal and policy issues surrounding the establishment of Societies of Quality Medicine, particularly the issues of contracting over liability, and outlines a means of overcoming ...

Legal consequences, measures of prevention and reduction of medical malpractice cases (errors)

“…Engineering of a strategy for implemen ting the prevention and reduction procedures with defects in the medical care shall be based on the fundamental understanding of the medical malpractice (error) nature and multi-vector nature of generation of a system complex of different preventing and reducing measures. By taking into account the existing scientific researches in this field and approaches presented in them [6], we suggest identifying the following blocks of measures and procedures on the basis of the criterion "purposefulness": Purpose 1. To form a powerful system of prudential internal control of defects in the medical care.…”

A insustentável leveza da culpa: a compensação de danos no exercício da medicina

“…Some authors argue that, in fact, avoidability is not that different from negligence, because, if the injury could have been avoided, it means that the health professional did not provide proper medical care to the patient; in short, he was negligent (Maccourt;Bernstein, 2009;Mehlman;Nance, 2007). As Mehlman and Nance (2007) ask, "what physician would not experience shame upon being accused of an avoidable error?"…”

“…However, let us not get carried away by impulses arising from enthusiasm, because the no-fault model also has its weaknesses (Farrell et al, 2010;Maccourt;Barnett, 2009;OECD, 2006). For example, the value of compensations may be higher than what would be needed to cover the damages, especially those that are not of patrimonial nature, which oftentimes are simply excluded.…”

Utilizing Information Technology to Mitigate the Handoff Risks Caused by Resident Work Hour Restrictions

“…And although one pilot project indicates that resident satisfaction with handoff increased with the introduction of a simple database (FileMaker1 Pro, FileMaker, Inc., Santa Clara, CA) handoff system [26], the mistaken perception that a more comprehensive smart handoff system is potentially harmful may cause enough resistance to scuttle the system. Still, remedying that perception may therefore require tearing down the entire ''culture of blame'' [16,22] currently characterizing medicine-a formidable task indeed.…”