Saturday, February 18, 2012

Real Tort Reform

I don't have time now to do a full write-up of what I think tort reform should look like and why, and to my surprise I discovered I don't need to.  I guess I'm not the first person to think that a workers comp style process is applicable to Medical Malpractice.  Closer to home, I found that Jack Roberts had written about this very concept back in 2009 in the O (emphasis mine):
Other proposals are more specific to medical malpractice, such as specialized health care courts and safe-harbor practices to protect doctors from liability even if something goes wrong. But maybe it's time to consider a more radical reform, such as a system of no-fault insurance for medical malpractice similar to the workers' compensation system.

Since the adoption of workers' comp laws early in the last century, workers injured on the job are covered without regard to whether the injury was caused by the negligence of the employer, a co-worker, the worker himself or simply bad luck. Injured workers have their medical bills and other out-of-pocket costs covered as well as receiving compensation for loss of income and certain general damages in accordance with an established schedule. In return, they give up the right to bring an individual lawsuit against their employer and with it the hope of winning a lottery-size award or settlement.

Applied to medical malpractice, such a system would compensate any patient whose surgery or other treatment (or lack of treatment) resulted in an adverse result, whether or not the doctor, hospital or nurse was at fault. It could redirect resources currently spent finding fault to compensating patients who have been harmed. And it would recognize that even where medical providers have performed their jobs badly, large jury verdicts are not paid by the wrongdoers but shared by everyone through the insurance system.
 To get a sense of how much more efficient workers comp is at delivering benefits than med mal, let's look at Oregon state wide experience:
ALAE are expenses that can be directly attributed to a specific claim.  So the cost of a court filing for instance is particular to a claim while the cost of a claims department generally is not.  In practice, for these lines ALAE is mainly defense counsel.

What these figures show is that from 2003 to 2010 only half of the med mal premium dollars went to indemnity payments to claimants.  The rest was chewed up by defense costs, overhead and profit.  In contrast only 13% of the Workers Comp premiums were diverted in this way.  The difference is even more striking when you realize med mal claims are much more likely to have a plaintiff's attorney involved than workers comp, and they are paid from indemnity proceeds.  So not even half of the med mal premium money actually reaches patients suffering harm.

A lot of ink has been spilled on the extension of a tort cap, but I think all of the above shows that we need to ask a deeper question.  Does the way we've structured Medical Malpractice liability make sense?  As our experience with Workers Compensation shows, alternate structures exist that have far less costly processes for adjudication.

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