Malpractice Solved
You are going to be a Good Samaritan. You are about to become a kidney donor so that someone else can live. The odds are in your favor. Only about 2 out of 10,000 fail to survive the operation.
Still, what if you were one of the two? What happens then? Under the current system, there are only two options. Neither is very attractive.
On one hand, your spouse, children, heirs, et al., could hire a lawyer, subpoena documents and take depositions to see if malpractice has occurred and compensation is due them. Or they could accept the financial and emotional loss stoically – forever wondering if your death was preventable.
Fortunately, your friends at the National Center for Policy Analysis have discovered a new and better alternative. Prior to your surgery, you are asked to sign a contract with these terms:
- You agree to waive your right to pursue any malpractice claim.
- If you fail to survive the operation, your family gets a check for $1 million. No lawyers, no courtroom, no judges, no jurors – just a cool million, no questions asked.
- For pennies on the dollar (out of your pocket), you can make the compensation even larger, say, $2, $3 or $4 million.
- The hospital pledges to make all safety records public; and to facilitate comparisons, they are available at a special Web site.
Voila! Problem solved. Can it get any better than that?…Well…as it turns out…it can.
You go to the Web site and compare. There you discover that other hospitals offer larger amounts of compensation in case of an adverse event. In fact, Hospital B offers $2 million if you fail to survive. Upon further investigation, you learn why. Your chances of dying at Hospital A (your original choice) are twice as high as at B. So if Hospital B pays the same insurance premium as Hospital A, it can offer twice as much.
You have your procedure done at Hospital B. Fortunately, it's a success and another five months go by. Then out of mere curiosity you return to the Web site and make an amazing discovery. All the hospitals are now offering the same compensation for kidney transplant fatalities. The reason: they now all have the same safety record.
Think about that. In less than six months, market incentives have accomplished what all the RWJ demo projects, Commonwealth studies, Health Systems Change conferences, HHS press releases, Newt-Hillary political alliances, and hectoring, harping, bullying, shaming, niggling, nagging speeches, editorials and op-ed pieces have not been able to accomplish since the dawn of time. (Okay, it only seems that long.)
Here's the basic idea: hospitals and doctors can get out of the malpractice system completely (other than for gross negligence) by agreeing to compensate patients for rare, unexpected adverse health events. The legislature decides (or sets up a procedure for deciding) in advance what the minimum compensation must be. To pay off the claims, providers purchase episode-specific insurance. The insurers (not bureaucrats, not lawyers, not even patients) then become the true monitors of safety – charging premiums that accurately reflect expected outcomes.
In no time at all, bad doctors and bad medical practices will vanish. They will be priced out of the market by insurance premiums they cannot afford to pay. Malpractice becomes very rare; high quality and safety become the norm; patients and their families get compensated, regardless of the cause of their injuries; and trial lawyers can go earn an honest living.
Space does not permit a full elaboration of details. You can find those at the NCPA Web site.
For the NCPA study on malpractice reform, go to : http://www.ncpathinktank.org/pub/bg163/
Have a good day
ABSOLUTELY LOVED YOUR PIECE ON MALPRACTICE SOLVED. My husband and I love getting your e mails. You are brilliant!!!!
We have medical health savings plans and are self employed. We are the typical folks YOU are writing for.
Absolutely Great idea John. Lawyers are sure helping to bring this once great country down.
This is absolutely ridiculous. If we put a system in place like this one, John Edwards would not be able to live in a 28,000 sq. ft. house and run for President and help the poor American working family.
Thank you. I like it.
Wow, John. This is one of the best pieces/ideas I have read in a long time. There is nothing like allowing market forces to change behaviors! (As we know politicians use market forces to work all of the time – unintended consequences of poor legislation) Now if only you could get some politicians to listen to and act upon this idea!
That’s really good. This works real great for transplants where you have health criteria before the surgery can happen. I’m curious how you’d handle other higher risk procedures where the patient may not be in the best of health. And the weird cases like a surgeon fusing the wrong vertebra because the patient was overweight.
I have already e-mailed my state rep, Larry Taylor, who is a member of the Texas House Insurance Committee, to express my support and give him a heads up to your proposal.
1. You agree to waive your right to pursue any malpractice claim.
2. If you fail to survive the operation, your family gets a check for $1 million. No lawyers, no courtroom, no judges, no jurors – just a cool million, no questions asked.
3. For pennies on the dollar (out of your pocket), you can make the compensation even larger, say, $2, $3 or $4 million.
4. The hospital pledges to make all safety records public; and to facilitate comparisons, they are available at a special Web site.
The basics behind this system have been around since I entered private practice and now I am retired. Where was everyone years ago when these problems were much simpler?
John begins his article with a good Samaritan. He runs through a voluntary kidney donor example and uses this to “solve” the medical malpractice problem. This is absurd for the following reasons:
1. A voluntary donor has little or nothing to do with medical malpractice or claims.
2. Purchasing insurance from a hospital to reimburse a flat amount on a no fault basis for an adverse result may deal with the donor’s problem but it does not address the aggrieved family and friends . It is about like purchasing event cancellation insurance or weather insurance. It covers the donor but no one else and that is why it will be cheap just as ADD and D double indemnity has cheap riders that increase benefits paid if a commercial airline crashes. It provides great coverage against statistically speaking extremely unlikely events. None of this applies to medical malpractice claims.
3. How he plans to objectively create a standard for “gross negligence” is undeveloped. If a subjective standard is adopted it will be reviewed in each case based on precedent. If objective it will be subject to court review and interpretation. This does little to limit litigation.
4. He works through a magic box formula where Hospitals A and B have floating benefits payable based on their record of safety. How simplistic and unworkable. He is ignoring the Edwards Deming parable of the red bean. You may wish to review that in several of the books on Deming’s management system. Space prevents developing this completely here. Mary Walton’s Book on Deming is a good place to begin.
5. Rare, unexpected health events are not what is causing the med mal claim problem. His solution ignores this. Doctors are not bad and medical practice incompetent because it has litigation. It is an affront to common sense to state otherwise. Great doctors take problem cases and create outcomes that lead to litigation. HAPPENS EVERYDAY. Under his plan these doctors will not exist and complex cases will be pruned from the system by a premature death. Hardly and improvement unless you are a deluded Evolutionist practicing medical natural selection.
The following are real cures for the sick system.
1. Medical care is not an entitlement. $.80 ON A DOLLAR IS COMING FROM GOVERNMENT. End this now.
2. Close all medical and nursing schools to any foreign students. No room in the end.
3. End AMA stranglehold over physician colleges. Allow supply to match market demand. End the certificate of need government imposed restriction that limits supply and drives up costs.
4. Bust the pharma cartel. End all product monopolies after five to at most seven years use.
5. Close Medicaid and Medicare.
6. Deport illegal aliens , their families and their diseases back to the third world where they belong.
7. End all government research and spending in the medical field.
8. Limit size of health insurers and deliverers to insure a large number of suppliers to match the consumers. Then consumers can select and pay for medical service. Gee, this is called free market capitalism what a novel idea.
9. Limit physician liability to 100,000/300,000 per year. Or develop separate med mal courts just as we do with patent courts. Or make affordable arbitration proceedings mandatory.
10. No government free care or subsidy for any reason at any time to anyone. Period.
Overall your idea sounds great. Make safety records transparent, determine appropriate compensation for various types of adverse outcomes and remove the bogus,arbitrary, legalized extortion that currently constitutes the malpractice legal system. But why not take it farther? Distribute the risk not only to providers, but to everybody using the system, meaning patients as well. After all, different patients have different risk factors for adverse outcomes based on preexisting health history, lifestyle factors, etc. Should a physician be responsible for your smoking, obesity,or preexisting heart disease, all of which increase your risk for adverse outcomes in an interventional setting?
Just like auto insurance. You use a car and you use the roads, you have to have insurance to drive. Then let the issues of provider quality be decided by the marketplace and others in the system who have advanced technical knowledge specific to medicine, not an arbitrarily assembled group of lay people selected by lawyers in part because they don’t actually know anything about medicine or surgery. The problem is of course that the medmal lawyers have a huge vested interest in preventing anything this rational from ever happening.
John: I thought that you might be interested in last Sunday's column by the NY Times's "ethicist," Randy Cohen.
See Doctor, Bully