In order to solve the problem, you have to establish what you were trying to accomplish in the first place. The reason medical malpractice exists in such prevalence today is because physicians have resisted an organized format for policing themselves. Most patients (and their attorneys) would say that they are just trying to sift out the bad doctors.
So the question we should ask is "What kind of system would truly allow errors and malpractice to be identified, fixed, with truly egregious acts punished, and allow recompense to the harmed patients?"
Some say that physicians should have immunity, like judges, prosecutors and legislators. The reason for the federal employee immunity is that is serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability. The same could be said for physicians, making life altering decisions-judgments so to speak. However, complete immunity would shield those committing true malpractice, so I don't believe this is the answer.
I understand why patients hearing of medical successes every day would think that a bad outcome would be malpractice. However, suing your physician does little to correct the problem as most errors are systemic, reversible problems.
- Each Medical Specialty Board sets the standards for what kind of education a physician should obtain to be qualified to practice. Therefore, they, not layperson juries, are the only ones truly qualified to determine medical malpractice.
- When a patient has a complaint against a physician, before going through the state court system, the complaint is first heard by a panel of physicians of that doctor's specialty.
- Every Specialty Board will require service by its members on that panel that meets every month-each physician must participate once every two years. It will be local, as there are sufficient members of each specialty in every state (however, if some states have shortages of Neurosurgeons for instance, there could be a multi-state meeting).
- The panel will be blinded in reviewing complaints and won't know who the physician is whom they are evaluating. The panel will have an odd number of members and decision will be majority vote.
- The decision will be: a) Was this malpractice, bad outcome, or a systemic problem? b) If bad outcome or systemic: a separate committee will compile this data and compare it to Evidence Based Medicine and seek answers to correct future occurrences - then disseminate that information to the physicians in that specialty.
- If Malpractice is determined, there will be a standard penalty for offenders: e.g. first time malpractice gets automatic required CME targeted to the issues in the case and probation, second time offenders in the probationary period will get more CME, and random case review. Third time and thereafter offenders risk license suspension and even re-education in an apprenticeship/residency type situation.
- Also, if Malpractice is determined, the case gets put into arbitration for settlement. While the physician (or plaintiff) could still decide to press for trial, the decision of the panel will be fully admissible in all states and will be highly influential to any jury.
- The process will be swift, with all patient complaints getting heard by the panel within 6 months and possible settlement within a year. Since there is no costly trial, most of the award to the patient remains with the patient, and they get it quicker. Overall insurance costs go down, and therefore so do physician premiums.
- Bad doctors will be rooted out. Good doctors will no longer suffer from the actions of the <5%>