Vail Valley Voices: Both sides need better info
Vail, CO Colorado
VAIL VALLEY, Colorado –Vail Valley Voices for and against healthcare-related tort reform seem both to lack substantive sources. There is a lack of information on both sides. The Harvard study cited recent-ly alludes there is small percentage of malpractice cases filed annually so as to be a substantive cost in healthcare. The study is referenced, however, on a “plaintiff” trail lawyers’ Web site. Like-wise, arguing “for” tort reform because you have an attorney in the family who says it’s needed is just as uninformative.
A better source to consider is the National Practitioner Data Bank. Their annual report substantiates that 25 percent of all doctors are sued annually, 50 to 65 percent are sued at least once in their careers, U.S. doctors pay 80 per-cent of the total mal-practice pre-miums col-lected world-wide and only 27 per-cent of the average U.S. malpractice claims filed result in a trial. Few other professions live with these facts.
The National Practitioner Data Bank is part of the U.S. Department of Health and Human Services collect-ing and reporting on paid malpractice judgments and settlements and other claims of professional misconduct. It is intended to disclose information about incompetent and unprofes-sional practitioners nationwide. This reporting agency operates as a watch-dog to malpractice and health insur-ance carriers and licensing agencies providing reports of doctor malprac-tice, misconduct and arguably the practice of negligent medicine.
So when we discuss healthcare reform and we say “all we need is tort reform,” we need more information. Do you mean abandon the ship or shore up the sails? Providers will tell you they need to “practice” medicine and “do no harm,” not guarantee medical outcomes. Patients have come to expect perfect medicine in a perfect pill that cures imperfect ills irrespective of their unhealthy lifestyles. There is a loss of patient responsibility.
On the other hand, patients must be able to rely on “good” medicine and non-negligent practice. The sys-tem must allow the crippled patient suffering permanent injury to seek compensation for their pain and suf-fering. Medical malpractice litigation should operate as the watchdog for both the patient and the provider. It measures the practice of medicine by what is reasonable and necessary and allows the negligently injured patient access to sue an offending provider.
So how has the current system cre-ated such cost overrides and contro-versy? Blame the lawyers, right? That’s what Shakespeare did. Dick the Butcher in “Henry VI” opines that rebellion will succeed “if first thing we do, is kill all the lawyers”. In context, he thought the rebellion would suc-ceed by eliminating the law enforcers.
So blame the lawyers, right? Right and wrong. Malpractice litigation is the means by which the watchdog works. But, again, it is our patient society and litigious nature that drives the medical malpractice lawsuit supply and demand.
One answer, rightfully cited by both sides of the tort reform spectrum, is to signifi-cantly curtail the number of “frivolous” and “baseless” lawsuits. The question is, how? How is the patient to determine the status of their claim? The litigation watchdog in Colorado attempts to do so as follows. A patient’s lawyer is required to file a “certifi-cate of review” naming a competent expert they have consulted who says medical neg-ligence exists. The certification is intended to prevent filing unsubstantiated medical claims based only on legal knowledge. It also pro-motes doctors to freely evaluate potential claims without the fear of later testifying against fellow doctors and colleagues.
The certificate of review, however, has not helped either side. It has no teeth. It does not prevent unsubstantiated claims filings nor help attorneys obtain reluctant opinions. Nor does it help the providers determine the basis of the claim. It does not contain experts names nor disclose opinion specifics. It is feared that a “substantive dis-closure” certificate would prevent justifi-able claims. That somehow the more “gen-eral” certification helps broadens the pool of physicians willing to give an opinion without the worry of later testifying against their fellow doctors. Type the words “mal-practice expert” into Google. Hard to argue doctors won’t testify against each other.
Further, most credible experts can ade-quately review the same medical records used by the attorney to evaluate the legiti-macy of the malpractice claim in forming their opinion. This seems more like just good preparation for a legitimate claim.
The lack of disclosure in the certification wastes time and money for both sides – time and money better spent to determine reasonable resolution of the claim, whether settlement, trial or dismissal. Further, if it is later determined that the patient attorney cannot find an expert to testify at trial (more than two years later in most cases) the information upon which the “expert certifi-cation” is based is protected from any dis-closure to the court or otherwise and pre-sumed accurate. A better system would require a manda-tory confidential sealed substantive disclo-sure as the certificate of review. If, later, the patient attorney cannot “find” or “hire” an expert, the court may review the certifica-tion to determine if the claim was substan-tiated. If it was not, the attorney could be sanctioned by the court. Some states even use a medical review board to avoid the pit-falls of the general certification of review.
Why hide the reasonable basis of a legit-imate medical malpractice claim? The answer may be, it is easier to settle the case and get paid before the real risk of winning or losing can be assessed by the provider. The doctor and insurance carrier often choose to avoid the time and stress and risk of losing and agree to settle even in ques-tionable cases. Further, it is nearly improb-able to prove a case is “frivolous” when the attorney alleges he complied with the cer-tificate of review. Immediate and full dis-closure to all parties, all claimants and to the courts is an easy fix. It empowers the watchdog. It reduces the ability to file ques-tionable claims with the “hidden” intent to invoke settlement.
How would this decrease the rising cost of healthcare? Most obvious, potentially reduce malpractice premiums. But just as important, decrease the number of “good” doctors dealing with unsubstantiated mal-practice claims. No wonder less and less students choose medical school.
Jill E. Kovacevich is a licensed Colorado non-practicing attorney and medical administrator.