Q&A: New model for medical liability system

Q:  Should the medical liability system be transformed into a new model that emphasizes safety, avoidable error, injury compensation and alternative dispute resolution?

“A more enlightened approach to medical liability would distinguish providers who generally drive toward quality improvement and safety. The potential for those providers to opt into a different compensation system would have the dual effect of treating patients and providers fairly while creating an incentive to become eligible for the ‘opt-in’ system. The new model ought to incorporate three salient features: a trustworthy evaluation to certify the provider infrastructure; transparent quality performance reporting; and a closed clearinghouse – not available to plaintiffs – to which providers in the alternative system must report what they have learned from circumstances that created harm.”

—Alice Gosfield, Esq., health lawyer, Philadelphia, Pa., represents physicians and group practices

“Changes in the medical liability system need to originate at the provider/institutional level, such as the system adopted by the University of Michigan Health System, whose approach is: ‘Apologize and learn when we’re wrong, explain and vigorously defend when we’re right, and view court as a last resort.’ Any changes should consider early non-binding evaluation by neutrals; reject caps for non-economic damages; adjust or eliminate the charitable immunity cap; and provide a more efficient, cost-effective method for resolving smaller claims.”

—Robert H. Astor, Esq.,
plaintiffs’ attorney, Springfield

“Studies about defensive medicine and the suggestion that there is a medical malpractice crisis shift the focus away from where it really belongs: the victims for whom medical error has been a life-changing event. A trial by jury is usually the last resort for those victims of medical error for whom justice is not offered or available. We should all strive for the day when medical errors are rare, readily acknowledged and victims are fairly compensated. For the foreseeable future, the trial court and jury system and the level playing field that they afford are many people’s last hope and only opportunity for justice.”

—Kimberly Winter, partner at
White, Freeman & Winter, Weston,
handles medical negligence cases and provider licensure.

“My approach to reforming the system would include: (1) a tribunal system more in keeping with the legislative intent, rather than a system that allows the plaintiff to get by so long as she presents a medical opinion letter; (2) a requirement that the defendant be notified 90 days before a suit is filed; (3) encouragement of open discussion of unfavorable medical outcomes by providing that ‘apologies’ be inadmissible in court; (4) limitation of  recovery against an individual physician to her insurance limits; (5) requiring that experts be board-certified in the same specialty as the defendant; and (5) a medical malpractice court with specialized judges.”

—John Bagley, partner at Morrison Mahoney, Springfield; represents
physicians