OK, folks.  Let’s tackle an easy one with only one topic.

In this country, the saying goes, anyone can sue anyone else for any reason (and sometimes for no reason at all).  But medical malpractice is a specific type of tort, a civil lawsuit that has had intended consequences and unintended consequences for all of us.  So let us look at tort reform.

First, the intended consequences.  Attorneys who specialize in medical malpractice present their cases to a jury made up of regular citizens who are tasked with the job of determining the dollar value of the particular injury (and pain, suffering, loss of consortium, future salary, etc.).  Because these lay juries do not have any particular medical training (and they are dealing with OPM – Other People’s Money, i.e. the insurance company’s), they tend to deliver awards that are lottery like.  Their thinking is that if I were in that position (and it didn’t cost me extra), I would want to be as generous as possible.  The lawyers, as in most personal injury cases, collect a third of the award.  It can be pretty lucrative.

Now the unintended.  Because of the increase in medical malpractice lawsuits, doctors have been practicing defensive medicine.  According to this Massachusetts Medical Society report, 12% of all health care expenditures are for defensive medicine and costs involved are well over $100 billion annually. The costs for those x-rays, ekgs, stress tests, MRIs and blood work add up quickly.  But the doctors think, “I sure don’t want to be that guy who gets asked ‘Why didn’t you order an MRI to determine for sure the extent of the problem?’ on the witness stand.”.

So, how do we change the system?  First, we must look to tort reform, specifically for the medical malpractice arena.  Instead of using a regular civil trial with judge and jury, change all medical claims to an arbitration model with medical experts as the arbitrators.  Under this type of a program, there would be limits on non-medical claim reimbursement.

Second, we change the method of reimbursement from a medical malpractice insurance model to a model that has worked well for the banking industry, the FDIC.  In this case, each health care provider pays a fee into a pool that the arbitration panel can use to pay claims.

Doctors and hospitals don’t get off scott free here, though.  I would expect that as a part of this program, reporting on the number of successful claims will be made available for quality checking by interested patients.  This will be another area where transparency will allow health care consumers to have more information on which to make provider decisions. In addition, if physicians were incompetent, the arbitrators could (and should) take away medical licenses.