Reform Concept Could Speed Resolution Of Medical Malpractice Claims
March 27, 2002-- A tort reform
concept proposed by University of Virginia law professor Jeffrey
OConnell could greatly speed the resolution of most medical
malpractice claims by addressing their systemic causes rather than
fixing blame on an individual.
to estimates published by the National Academy of Sciences' Institute
of Medicine (IOM), between 44,000 and 98,000 Americans die each
year from 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 inevitable in todays complex medical system.
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 overall system. The current tort
systems "blame culture" is itself blamed by the
IOM for impeding improvements to patient safety because it deters
physicians from reporting their errors in the first place. However,
the IOM does not propose what an effective tort reform scheme would
manner in which personal injury cases are prepared and litigated
is totally at odds with the IOM reports emphasis on systemic
causes of avoidable medical failures," said OConnell,
citing the work of law professor Neil Feigenson, who describes the
dichotomy in his book, Legal Blame, published by the American
Psychological Association 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, theyre repressed."
on exhaustive examination of scholarly literature and actual trial
transcripts, Feigenson found that complexity repels jurors and even
judges, OConnell pointed out. Judges and juror are 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, in particular cases,
have been amiss.
the IOM report and Legal Blame are analyzed in an article
titled, "More Hippocrates, Less Hypocrisy," by OConnell
and co-author Patrick B. Bryan, published in the current issue of
The Journal of Law and Health. The article also sets forth
a statutory reform proposed by OConnell, 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 and with
less difficulty than under the current tort system.
creates a simple device," OConnell 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 claimants net
economic loss 120 days being a relatively prompt time frame
compared with the current tort system."
feature of the plan is that a defendant who promptly offers to pay
a claimants net economic losses forecloses further pursuit
of a normal tort claim for non-economic losses.
could be turned down by a victim, but only in cases where the defendants
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
systems 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."
the plan requires defendants to make any offer early in the dispute
process, it ensures that victims can receive rapid and essential
compensation when they need it most. Both parties avoid protracted
todays 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," OConnell
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 claimants 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."
keeping with the goal of the IOM report, implementation of the Early
Offers system would lessen the myopic and counterproductive blame
culture that permeates current tort law, OConnell said. Early
Offers would help calm the animosities of the parties in accident
claims by giving defendants a healthy incentive to acknowledge any
problems promptly and to discuss what happened. The Early Offers
plan thus promotes understanding, cooperation and swift compensation
rather than contentious, hostile and dilatory proceedings.
Jeffrey O'Connell, (434) 924-7809