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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

FOR ADDITIONAL INFORMATION: Contact the Office of University Relations at (434) 924-7116. Television reporters should contact the TV News Office at (434) 924-7550.

SOURCE: U.Va. News Services

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