Thursday, August 13, 2009

The Medical Malpractice Reform Debate Part 2

In my previous blog I discussed why our current tort system for medical malpractice is unfair to both patient and physician. And I said I had a plan for reform. Here it is:

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.

The Solution:
  1. 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.
  2. 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.
  3. 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).
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. Bad doctors will be rooted out. Good doctors will no longer suffer from the actions of the <5%>
However, the losers in the plan are the attorneys, and the livelihood of medical malpractice attorneys like my father will be threatened as a result. They will not go down quietly.


  1. Some problems:

    1. Doctors are busy people. Very busy people. Getting doctors to take on responsibilities for a review board that take them away from patient care will be almost impossible even with the requirements you specified. The doctors you do get to volunteer will have a high probability of suffering from "HOA Syndrome", where only the nuttiest or most incompetent seem to be willing to volunteer to serve on an HOA board. It is unclear whether medical associations -- which, of course, are made up of doctors -- would have the ability to force doctors to serve on these review boards, the doctors would rise up and kick out the medical association's board of directors and elect one that'd get the review board requirement watered down or eliminated.

    2. This implies that the only way to get the doctors to serve on these panels will be to make them state panels, with the doctors subpoenaed a'la juries to serve on them under threat of imprisonment if they don't show. But then we're out of self-governing into state action again, and you'll have Constitutionally-required due process rights that interfere with self-discipline.

    In short, it's a good idea, I just have trouble figuring out how it could be workable, given the facts of a nationwide physician shortage and overscheduled docs who simply will not show up for these things.

  2. Bad Tux thank you for your comments. As a physician myself I totally understand your concerns. However, I do not see that a few days of one month every two years is too onerous. Docs go to multiple conferences every year. If serving on the panel meant that their malpractice ins. would be reasonable and frivolous lawsuits would get weeded out, I believe that Docs would do it. I would make it a requirement for Board Certification.

  3. It's an interesting idea. However, having the boards have to reach a consensus rather than a simple majority would produce more compelling results.

    You might have to limit the people who serve on the boards to those who are most active in teaching and continuing education, in order to avoid nut-job doctors who would poison the deliberations and skew the results, though.

    You'd better also provide some immunity to the doctors serving on those boards. A professor of mine served on such a committee reviewing another doctor's actions, and he ended up being sued for defamation. His malpractice insurance didn't cover his defense costs on that one, either.

  4. Eileen: You make some great points - especially regarding immunity. That would be necessary to ensure the process works. While I agree it would be more compelling to have a consensus, it is nearly impossible to get a bunch of docs to get a consensus on anything. Even simple things. Look at healthcare as a quick example. I was just being realistic and was hopeful that docs could at least come to a majority opinion.

  5. I have a comment/question Dr. is it malpractice for a doctor to give a patient a medication that is clearly contradicted for their disease? I watched a doctor give a stage 2 Parkinson's patient haldol to calm him and 5 days later he died of aspiration phenomena from advanced PD, would a doctor normally hope the outcome of calming him worth the risk of killing him?

  6. Jim: If you read my book, the chapter on "what is malpractice?" you will see that there are three main things that make malpractice:
    (1) There is a deviation of care from the standard (2) That deviation from the norm was the (or "a" in some states) proximate cause of the injury and (3) there are damages.

    Based on your limited data scenario, (1) and (3) are met, but (2) is lacking as there were 5 days from the event to the death where many other things could and likely did cause the problems you state.

  7. Thank You Dr. Brenner, I do have your book, it is so very informative, many thanks for your efforts in bringing light to the Med/Mal misconceptions. If I may I will expand and see if I can shed some light on #2, The PD patient received the Haldol IV on Thursday and Friday and Sunday morning "Froze" and was taken to ICU on full life support, knowing that haldol is (a) not approved for IV use (b) induces aspiration in PD (c) is contradicted for PD (d) was given to an elderly patient with no informed consent (e) was given with Parcopa (Haldol will interact with Parcopa).
    Would it not be safe to say, since a PD sufferer already has mild aspiration, that the Haldol did exactly as warned against and given intravenously can and will cause arrhythmia, or could one concluded since the death was not instantaneous, that the medication error played no part in the death, unlike say a Morphine overdose.
    Can you think of a scenario where you your self would give a PD patient Haldol?

    I Thank You so very much for your thoughts and insight Dr. Brenner
    And again many thanks for your wonderful publication!

  8. Dr. Brenner, I am quoting you here, will you please express your thoughts on this........

    "Make sure you understand well the basic medicine components to your case. If you are wrong on the medicine, it will not matter what your defense is."

    Again many thanks for your insight!...... it is so nice to get your opinion

  9. You certainly give an convincing argument of malpractice, but I am not an expert as I do not do that form of medicine. Only a colleague in the same specialty would be able to make that call, and they would need access to the whole chart to make that decision. Again, just because a person misused a medicine (if that indeed did occur as you say), there was a 5 day gap, and during that time, there may be other mitigating factors. So I do not think I can be definitive on this. I think that there could be malpractice, but there might not be also.

    Re: your quote, that means, when you are in your deposition, you need to be fresh and up to date with all medical issues relating to your case. It would not look good if you completely blanked on a subject you should know about. And if you do, that can be used against you. However, a good lawyer could defend an occasional comment as being nervous at the deposition and repair the damage at trial. Still, there is no excuse to be lazy when it comes to your case. Do the research. Review textbooks. Become your own expert.

    Jim, thanks for your support. I am glad you enjoy the book.

  10. Thanks for your thoughts Doctor, back to your Topic, doesn't a plaintiff first have to show a causation or probable cause to even get a case heard in court, I know you do here in California. very few cases make it to trial. I like your "Solution" you outlined. # 4 is very interesting, it would be ironic for a doctor to find himself guilty of malpractice.
    All in all some great ideas you have presented.

    Looking forward to your next book.


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