Apr 2007

Is "No-Fault" the Cure for the Medical Liability Crisis? Commentary 1

David E. Seubert, MD, JD
Virtual Mentor. 2007;9(4):315-317. doi: 10.1001/virtualmentor.2007.9.4.oped1-0704.

 

Patients who suffer an adverse health care outcome often assume that, but for the negligence of their treating physician, their condition would be different. Such patients then often engage a plaintiff attorney and begin a long journey down the tort pathway to seek compensation. This process is adversarial and has many inconsistencies. Many patients are seeking compensation for outcomes that clearly were out of the hands of the treating physicians and health care team. Nonetheless, clever lawyering skills can distort the picture and, when the case is presented to a lay jury, a windfall award can be granted. But who really wins here? If the patient gains an award, it is usually years after the adverse event, and the award is reduced by a large percentage that covers the attorney's fees and expenditures associated with the trial.

The greater theme that must emerge is the effect of this adversarial process on society. The current process promotes the legal profession's view of physicians as "conspirators of silence." This conception was born from the fact that physicians served with civil notice of a pending medical malpractice case against them are informed by their attorneys to keep their mouths shut and not to discuss the case with anyone. This often isolates the physician and leads to responses such as depression and anger [1, 2]. But what if the physician could speak at the time of the event and offer insight and interpretation of what happened, prior to being deposed or appearing in court years later? Clearly this more forthright and contemporaneous approach offers many benefits for society.

A no-fault system of compensation for medical injury similar to the workers' compensation and automobile insurance models may be the answer to the medical malpractice crisis omnipresent in the United States today. Allowing physicians to come forward when an error occurs and join forces with their patient(s) and the hospital system could improve the entire network of health care. The current conspiracy of silence carries great risks for society. Suppose the error that has harmed a patient lies in a faulty system and has potential to do much more damage? Silence and lack of investigation of the problem can have greatly deleterious consequences.

A no-fault system encourages health care professionals to identify the system malfunction and take a proactive approach to fixing it. At the same time, where a patient has suffered harm, the no-fault system must assure appropriate compensation. Such an approach accomplishes two goals: first the patient is compensated for the injury, and, secondly, society's health care is upgraded and enhanced by fixing an error in the system. Such an error may in fact be a physician with a deficit. The no-fault process can identify this deficit and allow for physician retraining and rehabilitation.

The Swedish health care system has a 29-year-old progressive approach that is quite simple. This system encourages the networking of the patients and their treating physicians to cooperate in filing an adjudication claim to a panel for review. The panel then asks three questions, the first of which is: Was the injury the result of the treatment rendered [3, 4]? The process only proceeds if the answer to this question is "yes." The next two questions ask whether the treatment in question was medically justified and whether the outcome was unavoidable. If the answer to either of these questions is "yes," the patient is not eligible for compensation but does have the right to appeal the decision. If the answer to both questions is "no," the process continues. This collaboration between patient and physician must surely be healthier and more beneficial for society than our current adversarial approach with torts.

Several important questions spring to mind. What will be the impetus for such a change if it has not already occurred? Will the medical malpractice crisis have to get worse? Will more physicians have to stop practicing their specialty and more patients go without needed physicians? We will have to convince both physicians and attorneys that the no-fault system is the better model. Many physicians will fear the conversion since it is so ingrained in us that admitting a mistake equals liability. Attorneys will argue that this system in a sense partially abolishes the patient's right to a "day in court" in the civil arena. Finally, who will pay for this? Currently, medical malpractice premiums cover awards from settlements and jury decisions. A no-fault system would require a much different framework, with either the government or a physician-hospital model or a combination of the two responsible for compensation.

Critics of a no-fault system argue that it would be much more expensive for society. But Studdert et al. [3] did not find this to be the case when comparing the current malpractice systems in Utah and Colorado to a proposed no-fault system. While this model did show a slightly increased cost over the malpractice model, the no-fault model was more effective at getting the compensation into the proverbial "right hands." Clearly, it is much more beneficial for the patient and for society to have the compensation given mostly to the patient rather than to have a large percentage drift to the plaintiff attorney.

Finally, how do we teach our medical students and residents to accept the no-fault approach? Or even more fundamentally, are we equipped and prepared to do this at present? There is no doubt that our trainees would buy into this approach. Students and residents are bombarded with stories of malpractice horrors. Many residents become victims to malpractice claims during the process of their training. But are we as teachers and mentors ready to abandon the current system as a profession and demand change? This is clearly the first step in the teaching process for our students and residents. We have a duty to our trainees to fix the system by adopting a no-fault approach that is progressive, nonadversarial, open and honest, and always in the interest of quality improvement. If we could instill this idea in our trainees, our health care system would be better, safer and stronger for our entire society.

References

  1. Committee on Professional Liability. ACOG committee opinion. Coping with the stress of malpractice litigation. No. 150. December 1994. American College of Obstetricians and Gynecologists. Int J Gynaecol Obstet. 1995;49(1):83-84.
  2. Chauhan SP, Chauhan VB, Cowan BD, Hendrix NW, Magann EF. Professional liability claims and Central Association of Obstetricians and Gynecologist members: myth versus reality. Am J Obstet Gynecol. 2005;192(6):1820-1828.
  3. Studdert DM, Thomas EJ, Zbar BIW, et al. Can the United States afford a "no fault" system of compensation for medical injury? Law Contemp Probl. 1997;60(2):1-34.

  4. Studdert DM, Brennan TA. No-fault compensation for medical injuries: the prospect for error prevention. JAMA. 2001;286(2):217-223.

Citation

Virtual Mentor. 2007;9(4): 315-317.

DOI

10.1001/virtualmentor.2007.9.4.oped1-0704.

The viewpoints expressed in this article are those of the author(s) and do not necessarily reflect the views and policies of the AMA.