Editorial: The tort reform quagmire: A problem for everyone

Dr. Mirvis is the Editor-in-Chief of this journal and Professor of Radiology, Diagnostic Imaging Department, University of Maryland Medical Center, Baltimore, MD.

In his second term, President Bush has again raised the issue of medical tort reform as a major agenda initiative. In his first term such reform proposals met their demise in the Senate. In spite of a lack of action at the federal level, approximately 21 states have passed some form of tort reform legislation in recent years. ¹ Not surprisingly, in many states, these new laws are being challenged in the courts. ¹ Anyone who has undertaken even a cursory review of this subject will realize immediately that it is immensely complicated. Trial lawyers, physicians, medical insurance companies, health maintenance organizations (HMOs), and, of course, the recipients of medical care, our patients, have a vested interest in any changes that occur. As in most public debates, all parties can play fast and loose with the facts, emphasizing only those points that favor their position, and expounding inflammatory rhetoric, hyperbole, and sound bites in many cases. In all such complex issues both the cause of the problems and any potential solutions lay with all concerned parties, require acknowledging the contribution of each to the problem, and, of course, demand willingness to compromise.

In a quite simplified version, the following issues seem to be at the core of this matter.

1. Many doctors are being priced out of practice (particularly in high-risk fields such as obstetrics, neurosurgery, and emergency medicine) by lofty and fast-growing malpractice premiums. They are either leaving medicine, retiring early, or moving to other states with lower premiums (for the moment).
2. Insurance companies charge high premiums to make money (they are, after all, businesses with stockholders) and to compensate for ever-increas-ing settlement costs and jury awards.
3. Lawyers representing injured clients seek actual economic and punitive damages. They typically collect 30% to 50% of any awards in compensation. They argue that this is justified by the very high cost (risk) in pursuing malpractice cases and the high number of cases in which the physician defendant prevails. Plaintiffs prevail in roughly 25% of cases. ²
4. Juries may impose exorbitant punitive damages that are unrealistic.
5. Healthcare recipients expect expert care from physicians, who are usually well-compensated, at a reasonable cost with appropriate redress for substandard or injurious practice.
6. Physicians do not impose strict enough oversight of their profession to identify those members who require further training, monitoring, and incentives to improve their practice skills.
7. The costs of healthcare are rising at an unsustainable rate for individuals, businesses, and government.

A cap of $250,000 on "pain and suffering" awards for medical malpractice lawsuits only provides a weak band-aid solution. The Congressional Budget Office says the President's proposal would lower medical malpractice premiums by 25% to 30%. ³ A recent study estimates that caps on recoveries have reduced premiums by roughly 17% for states with caps compared with states without caps. ¹

The following are some suggestions of areas for which action may be warranted:

• Physicians and hospitals should aggressively support quality improvement programs, periodic recertification, verification of core competencies among all staff, and close monitoring for medical errors. All caregivers who demonstrate deficiencies should be provided with further training and evaluation, and, if ultimately needed, professional sanctions to improve the overall quality and safety of care.
• This editor believes that, to as great an extent as possible, insurance companies, with their profit motive, should be eliminated from providing malpractice coverage. Self-injured trusts within or among hospitals, without a profit incentive, are in a better position to work within institutions to address needs for quality improvements. Private physicians not included in hospital-based programs should be incorporated into a similar arrangement under state group malpractice coverage programs.
• Medical malpractice claims should be mandated for arbitration or review by professionals with knowledge of standards of practice, current law, and expertise in assessing economic damages. To avoid the huge costs of litigation, settlements should be sought through such arbitration whenever possible. Those complaints found to be without merit after review should be dismissed. If recommended settlement proposals are rejected by the plaintiff, all costs of future litigation should be borne by the plaintiff and similarly for the defense. A much briefer time limit (months, not years) for discovery and trial would be needed to decrease costs, allow quicker financial relief for plaintiffs, and decrease psychological stress for defendants.
• Juries, I believe, should not have the potential to award open-ended punitive damages. Guidelines should be provided for both real and punitive damages that are federally mandated. Some kind of cap on punitive awards seems appropriate. Plaintiff's lawyers argue that the need for just compensation for their clients is a basic right, but this rings hollow given the large part of any settlements that they receive. If the number of malpractice cases that actually reach litigation is better managed, attorneys' costs of practice should also be better controlled.
• The standard to which physicians, hospitals, and medical care workers should be held should not be outcomes- based, since at times outcomes are poor, even given the utmost quality of care. Malpractice should be defined as care falling well below any reasonable
• standard of practice, as judged by true experts in the field, not based on testimony by "hired gun" physicians. Physicians should be accountable to their specialties for erroneous statements of fact in trials. Some degree of willful negligence, I feel, should be inherent as well. Medicine is quite imperfect and very complex, and the spectrum for medical judgment should be wide.
• Hospital oversight by organizations, such as the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), should be strengthened and their findings made public. At the same time, patients and their families need to be provided with realistic expectations for medical care as well as ample opportunity for communication to permit better understanding of treatment and anticipated outcomes.
• Physicians should have adequate time with patients for assessment and discussion. Deficiencies here are likely a major culprit in sowing seeds of poor outcomes and misunderstanding. However, this issue is, in itself, a hugely complex matter that goes to the core of the current organization of medical care in the United States.

These few suggestions are, of course, biased, as they come from a practicing physician, but I hope they reflect at least some balance in considering the many roots of and potential solutions for the current and growing malpractice dilemma. If nothing else, I hope they spur discussion among our readers and their associates or contacts in medicine, law, government, hospital administration, quality improvement/risk management, and even malpractice insurance firms, since all are part of both the problem and the solution.