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HHS
Report Endorses Tort Reform Concept That Could Speed Resolution
Of Medical Malpractice Claims
August 22, 2002--
A
tort law reform concept known as the Early Offers plan, proposed
by University of Virginia law professor Jeffrey O’Connell,
has earned the endorsement of the U.S. Department of Health and
Human Services in it efforts to rid the nation’s medical malpractice
litigation of excesses and abuses. Early Offers could greatly speed
the resolution most medical malpractice claims by focusing on systemic
causes rather than individual blame. In its July report, Confronting
the New Health Care Crisis: Improving Health Care Quality by Fixing
Our Medical Liability System, HHS praises Early Offers as a “set
of balanced incentives” for speeding case resolution. It also
proposes to test the concept as an option in federal health programs,
such as those involving experimental treatments.
According to estimates published by the Institute of Medicine (IOM),
between 44,000 and 98,000 Americans die each year due to preventable
medical errors. Most are not caused by the carelessness of individual
physicians, nurses or other hospital personnel. Rather they are
the result of cumulative opportunities for human error that inevitably
arise in today‘s complex medical system.
The 1999 IOM report To Err Is Human: Building a Safer Health Care
System calls for shifting attention away from the faults of individual
care providers to the system itself. The current tort system’s
“blame culture” is blamed by the IOM for being an impediment
to improving the safety of patients because it deters physicians
from reporting their errors. However, the IOM does not propose what
an effective tort reform scheme would be.
“The manner in which personal injury cases are prepared and
litigated is totally at odds with the IOM report’s emphasis
on systemic causes of avoidable medical failures,” said O’Connell.
He cites the work of law professor Neil Feigenson, who describes
the dichotomy in his book, Legal Blame, published by the American
Psychological Association not long after the IOM report. “Instead
of uncovering the systemic origins of accidents, personal injury
litigation distorts accidents as not only having a single cause
but also paints them melodramatically by finding a histrionically
reprehensible flaw on the part of some single individual. Thus,
complex institutional factors are not just ignored, they’re
repressed.” Feigenson found that complexity repels jurors
and even judges, O’Connell pointed out. Both judges and juror
are thus much more likely to find liability (or to reject it) if
they can be made to focus on a bad guy (either plaintiff or defendant),
as opposed to intricate, interconnected processes or programs that
may have been amiss.
Both the IOM report and Legal Blame are analyzed in an article titled,
“More Hippocrates, Less Hypocrisy,” by O’Connell
and co-author Patrick B. Bryan, published in the Spring 2002 issue
of The Journal of Law and Health. The article also sets forth a
statutory reform proposed by O’Connell, who is regarded as
the father of no-fault insurance laws. This “Early Offers”
plan is similar to a no-fault scheme in that compensation is paid
periodically as losses accrue for economic losses (excluding non-economic
ones such as pain and suffering) delivered more swiftly with less
hassle than under the current tort system.
“It creates a simple device,” O’Connell said.
“Any defendant of a medical malpractice claim (a doctor or
a hospital) is given the option, within 120 days after a claim is
filed, of offering to make no-fault-like periodic payments toward
a claimant’s net economic loss—120 days being a relatively
prompt time frame compared with the current tort system.”
A crucial feature of the plan is that a defendant who promptly offers
to pay a claimant’s net economic losses forecloses further
pursuit of a normal tort claim for non-economic losses.
“Offers could be turned down by a victim, but only in cases
where the defendant’s injurious acts were the result of intentional
or wanton misconduct provable beyond a reasonable doubt (or at least
by clear and convincing evidence),” he said. “Thus a
crucial element of the tort system’s deterrence mechanism
is retained: Needy plaintiffs can still win suitably large monetary
awards under the Early Offers model through both economic and non-economic
damages in clear cases of medical misconduct.”
Since the plan requires defendants to make any offer early in the
dispute process, victims can receive rapid and essential compensation
when they need it most. Both parties avoid protracted litigation.
“In today’s medical malpractice suits, the vast majority
of medical injuries are not the result of ‘wanton’ or
certainly ‘intentional’ acts, but at best only some
variant of negligence,” O’Connell explained. “The
Early Offers system provides incentives for both the claimant and
the defendant to agree to a binding early agreement, which in turn
will provide a key incentive for the health care provider to reveal
any medical mistakes that might have occurred in the course of a
claimant’s treatment. Indeed, an Early Offers statute could
require a health care provider, after an early offer is accepted,
to meet with patients and/or their families to explain as fully
as feasible the circumstances surrounding the adverse result.”
The plan thus promotes understanding, cooperation and swift compensation
rather than contentious, hostile and dilatory proceedings.
In endorsing the concept, HHS stressed that malpractice costs are
causing wasteful and unnecessary “defensive medicine”
tests and treatments, discouraging doctors from reporting adverse
events or entering high-risk specialties such as obstetrics and
surgery, and deterring retired doctors from volunteering in community
clinics.
Contacts:
Jeffrey O'Connell or Samuel H. McCoy II, Professors of Law, (434)
924-7809
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