Amending the MEDiC Bill: How to fix the legal component of the medical malpractice crisis
Gregory Makar
The relationship between doctor and patient has always been a balance of trust. The doctor trusts the patient to provide as much information as possible about the patient’s problem. In turn the patient trusts the doctor will give their best effort to heal them. When something goes wrong, this balance of trust is severely tested. Many patients feel scared and want answers, while doctors fear tort litigation and are hesitant to disclose any errors in procedures because malpractice torts differ from other forms of tort litigation. In malpractice torts, guilt depends on whether the defendant acted in an unsafe manner causing injury, rather than if the injurious act was intentional or a product is defective (Laks 2006). Aiding doctors’ rationales for fearing litigation is the dramatic rise in the number of lawsuits filed against doctors, coupled with astronomical rises in malpractice insurance premiums (Medical Liability Reform Now 2006). According to the American Medical Association (AMA), doctors have seen nationwide rises in insurance premiums of 505% from 1976 to 2000 (Palmisano 2003). According to various malpractice lawyers like George Annas however, litigation helps guarantee the correct treatment for patients, because hospitals and doctors will not improve care unless sued (Annas, 2006). This conflicts with two Harvard studies (Brennan 1996) and (Studdert 2006) that argue that the problem with simply increasing litigation is the current tort system shows little correlation between whether a patient injured due to negligence will receive compensation (p=.79) (Brennan 1996).
Furthermore, according to these studies and others (Danzon 1985), the cost of malpractice tort litigation is so high that.compensated patients actually receive a very small portion of the award amount. While Hilary Clinton’s and Barack Obama’s recent proposal, the MEDiC Bill, address several problems with medical malpractice litigation, I will show how the addition of an award scale and limits on legal fees will make the bill even more effective.
MEDIC and its Strengths
The National Medical Error Disclosure and Compensation (MEDiC) Bill is legislation intended to increase communication between patient and doctor by requiring mediation between doctor and patient after an accusation of negligence is made. Doctors are required to disclose unexpected outcomes to patients under the bill, but the bill also gives doctors certain protections limiting their liability. One of these protections makes all communications of apology during the MEDiC program mandatory mediation period inadmissible in court as an admission of guilt, in order to encourage compliance (Clinton 2006). This provision of the bill works to solve the problem most victims of malpractice, people like Jeff Graw and his wife, claim as the primary reason for a lawsuit -- they want information about what went wrong. Jeff ’s wife suffered a perforated uterus as a result of a surgical procedure to remove a “protruding fibroid from the inner wall of her uterus (Graw 2004).” During this period of pain and shock Jeff ’s main goal was to find out what went wrong (Graw 2004). Jeff ’s desire for an explanation is consistent with a New Zealand study that showed 40 % of patients questioned wanted more communication with the doctor. Additionally, 45.4 % sought understanding of the error and institutional changes to prevent recurrence (Bismark 2006). The 85% that choose a non-monetary remedy is even more striking considering the New Zealand national medical malpractice system offers victims two avenues for filing complaints of malpractice, a monetary claim or a request for explanation and review of the incident (Bismark......continued in print edition.
