ALEXANDRIA, VA.—Traditional tort reform measures like damage caps won't address some of the fundamental problems with the medical liability system, experts said at a meeting on patient safety and medical liability sponsored by the Joint Commission on Accreditation of Healthcare Organizations.
To deal with the current malpractice situation, the medical community needs to address the reasons why people sue—injuries, unmet expenses, and anger, said Lucian L. Leape, M.D., of the department of health policy and management at the Harvard School of Public Health, Boston.
“The main reason most people sue is because they are angry at the physician,” Dr. Leape said.
But the current system and the most commonly proposed reforms, such as damage caps, don't address the need to increase disclosure of errors to patients or incentivize physicians to offer apologies, he said.
Traditional reform measures such as damage caps would undercompensate seriously injured patients and increase administrative costs, Michelle M. Mello, Ph.D., of Harvard School of Public Health, Boston, said. And they would not help deter medical malpractice.
Damage caps also fail to address the poor correlation between medical injury and malpractice claims, she said. Instead of focusing on caps, the medical community needs to consider an administrative compensation system to replace torts.
The medical malpractice system is “blocking efforts at patient safety,” said Troyen A. Brennan, M.D., professor of medicine at Harvard Medical School, Boston, and professor of law and public health at the Harvard School of Public Health. A new medical malpractice system should be established to separate compensation for injuries from deterrence, Dr. Brennan said.
For that to happen, liability for negligence has to be eliminated, and reporting has to be made based on injuries to the patient. “You have to enable open and honest reporting,” he added.
Physicians also have to realize that reporting patient injury is part of their professional responsibility, he said.
Currently, some physicians do not disclose medical errors or injuries. That may be a rational economic response to physicians' rising premiums and fear of facing a lawsuit, Dr. Brennan said, but it definitely is not an ethical response.