Innovative Medical Malpractice Model Commands Attention at State Legislative Conference

November 12, 2013 04:13 pm Nancy Kuehl Broomfield, Colo. –

Tort reform is a top priority for many family physicians, so it should come as no surprise that attendees at the 2013 State Legislative Conference here on Nov. 1-2 gave their full attention to a presentation on a new model( for medical malpractice reform that is being considered in Georgia.

Wayne Oliver tells attendees at the 2013 State Legislative Conference that Georgia lawmakers are considering a tort reform bill that could change medical malpractice across the nation.

The new model, which was introduced as a bill in the Georgia legislature by Sen. Brandon Beach, creates a so-called patients' compensation system. Beach and Wayne Oliver, executive director of Patients for Fair Compensation, presented the new model to conference attendees, telling them that the current malpractice system in the United States is broken and doesn't accomplish its goals of

  • deterring unsafe practices,
  • compensating injured patients and
  • ensuring justice results in corrections to the health care system.

In fact, said Oliver, the current tort system creates a hurdle for improving patient safety because with the current "blame and shame" system in the United States, patient safety issues often get swept under the rug.

Story highlights
  • Attendees at the 2013 State Legislative Conference were riveted by a presentation on a Georgia legislative proposal to reform medical malpractice.
  • The bill would take malpractice out of the court system and assign it to negotiating committees.
  • The model would put an end to the practice of defensive medicine and ensure that patients' claims are settled in a timely manner, according to the speaker.

The current system also prevents access to justice for patients. Less than 20 percent of injured patients receive any sort of compensation, and less than 1 percent receive a jury award. In addition, litigation typically takes five to seven years, according to Oliver, which represents a major stress factor for litigants. Furthermore, many attorneys require a minimum of $500,000 in economic damages to take a case, said Oliver, and 80 percent of all legitimate medical injuries do not meet this threshold.

The current system also promotes defensive medicine, according to Oliver. He pointed out that research shows 82 percent of U.S. physicians practice defensive medicine compared with physicians in Canada, the United Kingdom and Sweden, none of whom engage in this practice.

Defensive medicine accounts for 26 percent of overall health care costs in the United States, and "tort reform doesn't address the problem with defensive medicine," said Oliver. "Defensive medicine is real, costly and pervasive."

The bill proposed in the Georgia legislature would take medical malpractice out of the courts and into negotiating committees, according to Oliver. It would cut costs by addressing the issues of defensive medicine, malpractice lawsuits and lack of justice for patients.

The proposal would create an administrative compensation system that would be overseen by an 11-member board composed of physicians, patient advocates, hospital administrators, business leaders, an accountant and an attorney. The board would operationally manage the patient compensation system, employ staff members, approve the compensation schedule and adjust provider operational contributions.

Anyone in Georgia with a medical malpractice claim would be assigned a patient advocate who would help the patient navigate the system. All claims would go through a medical review by physicians and others as indicated. The medical review department would gather all pertinent medical records, interview relevant parties, make prima facie determinations of medical injury and appoint an independent medical review panel.

The medical review panel would include preapproved physicians and other medical experts as appropriate. No information identifying individual patients would be seen by the panel, but the panel would rule "yes" or "no" on a claim before that claim could proceed.

If the medical review panel finds that a medical injury has occurred, the claim would go to the compensation department, which would be responsible for creating a compensation schedule for each type of injury and the severity of the injury. This department also would award compensation based on the findings of the medical review panel. Total compensation would not exceed the total costs of malpractice premiums for 2013.

The process for resolving each individual claim would be reviewed by an administrative law judge, who would ensure the process was applied according to the law. Appeals could be made based only on the process itself and not the size of the award.

Finally, the claim would go to the quality improvement department, which would record the confidential claims data and share any lessons learned with health care professionals.

The system would cover every licensed provider or facility in Georgia, said Oliver. The source of funds for the system would be the malpractice insurance premiums health care facilities and medical professionals now pay into the system, but instead of those premiums going to pay lawyers, patients and administrative costs in the current inequitable system, 80 percent of all premiums would be allocated to pay patient claims, with the remaining 20 percent covering administrative costs.

Benefits to patients would be

  • all complaints are reviewed,
  • payment happens in months rather than the years legal action can take,
  • exposure to unnecessary tests is reduced,
  • there is a guaranteed fund for avoidable medical injuries,
  • increased patient safety,
  • increased access to justice, and
  • injured patients receive fair compensation.

Benefits to physicians would be

  • they could never be sued again,
  • they face no personal financial risk,
  • the system does not assign blame,
  • physicians could admit to making mistakes and
  • medical malpractice premiums would decrease.

According to Oliver, two actuarial studies have predicted a decrease of $6.9 billion in health care expenses in Georgia during the first 10 years of the reformed system.