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Prescriptive policies for medical malpractice

Our story this week contrasts our domestic litigation-based malpractice system with the process used in Denmark. Recourse for Danes seeking malpractice claims moves their cases out of the litigation system and into mediation in a system of special medical courts — staffed by medical and legal professionals. For American plaintiffs, resolution can be strung out over years, while the system in Denmark allows patients to simply file a claim through the state-run website, just as one might with an insurance company here in the States.

Opinion in America is often sharply divided over medical malpractice litigation. Some say the advocacy system is the only sure way for patients to get proper redress. Others, including those wanting to simplify and cap lawsuits through tort reform, believe the system is wasteful- churning out settlements at a high cost to taxpayers and doctors alike.  Critics say the system results in “defensive medicine,” in which a doctor orders probably unnecessary tests and procedures with the only goal being forestalling a potential malpractice claim.

Texas Representative Michael Burgess warned in a 2010 New York Times post about the malpractice system that there is no quick fix for the American system: “Defensive medicine is a learned methodology, and one that cannot be unlearned quickly, and I believe this contributes significantly to the reason why costs do not decrease quickly and steeply after medical liability reforms are passed.” But there are a variety of reforms being explored — a majority of states have passed legislation with configurations of tort reform that range from proportional liability to damage caps.  But such reforms also lead to disagreement between reform and patient advocates. In Texas, liability caps and requirements that mistakes in emergency room care be shown to be “willful and wanton,”  are said to have decreased doctor’s insurance polices by thirty percent; however, some believe the quality of care has suffered as a result. The New York Times  quotes a local doctor saying, “What Texans don’t know is that their Legislature has mandated a very low standard of care — almost no care.” And in addition, patients now may have a harder time finding lawyers to take a case with limited financial outcomes.

The dissonance over tort reform-based solutions may be shifting reform efforts domestically towards a system not unlike that covered in our segment from Denmark.  Oregon Governor John Kitzhaber brought together lawyers and doctors to discuss how best to address medical malpractice in the state.  Kitzhaber says, “the groups have reached a deal that would among other things set up a mediation process aimed at avoiding costly court battles.” New legislation to set up such a process is in the works.

Oregon’s approach is based on policies the University of Michigan has implemented within their health system. The Michigan Claims Management Model, or “disclosure, apology and offer,” is designed to resolve malpractice issues before they ever get to court. Developed over the span of a decade, the Model puts both medical staff and patients in the forefront.  When patients believe a medical error has occurred, the university undertakes “a peer review to see if there was indeed an error and to learn if anything should be changed in its processes.” Additionally, the dialogue between patient and doctor is “open“; “health system doctors and officials meet with patients and their families, and if they believe an error truly did occur, admit what took place and apologize.” According to the Journal of Health and Life Sciences Law reported in The Michigan Daily, claims in the system dropped from 136 in 1999 to 61 in 2006.

Could this be the beginning of national shift in our approach to medical malpractice? It is certainly too soon to tell, but thoughtful reforms that bring disparate and often polarizing stakeholders together in resolution may just solve both the financial and emotional stress of medical malpractice.

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