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Tort Reform Concept Could Speed Resolution Of Medical Malpractice Claims

March 27, 2002-- A tort reform concept proposed by University of Virginia law professor Jeffrey O’Connell could greatly speed the resolution of most medical malpractice claims by addressing their systemic causes rather than fixing blame on an individual.

According 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 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 overall system. The current tort system’s "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 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, 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, they’re repressed."

Relying on exhaustive examination of scholarly literature and actual trial transcripts, Feigenson found that complexity repels jurors and even judges, O’Connell 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.

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 current 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 and with less difficulty 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, it ensures that 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."

In 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, O’Connell 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.

Contact: Jeffrey O'Connell, (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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