WASHINGTON -- Republicans, backed by the American Medical Association, are lobbying for malpractice reform that caps payouts to patients for pain and suffering.
The medical establishment and the General Accounting Office, the investigative arm of Congress, say that fear of excessive payouts in malpractice cases is driving health care costs up through higher insurance premiums for doctors and unnecessary tests ordered by anxious physicians.
But Democrats and patient advocates oppose any reform that limits liability verdicts to, say, $250,000 per incidence, arguing that this is nowhere near enough to compensate patients for damages due to bodily harm caused by medical error.
The House of Representatives recently attacked a different part of the health care elephant, passing legislation in April that would create a voluntary national patient safety database for the reporting of medical errors. It would analyze submitted data and offer recommendations for future prevention. Doctors who participate would be held harmless.
Is nobody able to connect the dots here?
Malpractice doesn't happen in a vacuum. Most lawsuits are the direct result of medical errors. While some control of payouts may be highly desirable, malpractice caps do not address the problem of medical errors and the resultant harm to patients.
And, as the Institute of Medicine has made plain, most medical errors are not caused by bad doctors but by inadequate safeguards or antiquated systems. They include the continued use of paper medical records and prescriptions instead of computerized systems that help manage patient care, or which provide alerts to guard against inappropriate dosing or harmful interactions.
So patient safety and medical malpractice are already inextricably linked. What if they were linked in a legislative solution as well? Here's how it would work:
Doctors who participate in the voluntary national reporting initiative and who adopt systems that are known to support safer care would be given a "safe harbor" from runaway malpractice verdicts. Patients who use those doctors could feel secure that their caregivers are less likely to make errors and physicians would see the benefits of malpractice relief.
But free choice is retained. Physicians who prefer not to report or use systems that promote safe practice can do so, but they may pay the price in higher malpractice judgments and loss of clientele.
No doctor wants to be the cause of an error or the target of a lawsuit. But most physician practices or hospital-based providers cannot afford the investment in systems that support better care (for example, computerized prescription ordering), especially when they receive no financial incentives from malpractice insurers, consumers or payers for doing so.
But linking voluntary patient safety initiatives with protection from excessive malpractice judgments could provide the incentive doctors need to start investing in such systems. If malpractice insurers got on board by offering discounted premiums to physicians that made themselves accountable through the system, those savings could be put back into upgraded systems that help reduce errors.
In fact, there are several models for this kind of incentive operating around the country. One is in Colorado, where a physician-owned malpractice firm called COPIC provides liability insurance for the majority of licensed physicians. COPIC-insured physicians know they are expected to notify COPIC of any incidents that might result in a claim against them.
"We require our physicians to call in incidents," says COPIC's CEO, Dr. Jerome Buckley. "Anything that smells, feels, tastes like a problem or potential problem must be called in. Our physicians will never be penalized for calling in an incident. But they will definitely be penalized if they don't. If a claim is filed and we haven't heard about it from the doctor, he or she will get called before the underwriting committee."
COPIC also conducts an audit of physicians focused on the use of systems and processes that reduce error.
Any national effort to accomplish malpractice reform will only be successful to the extent that it attacks the cause of the lawsuits: medical errors. Legislation that links voluntary accountability for quality and patient safety with financial incentives will protect both patients and physicians.
Margaret E. O'Kane is president of the National Committee for Quality Assurance.
