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    Behind the med-mal crisis
    Beyond stopgap: Legal reforms

    We can make the system more efficient, without sacrificing fairness.

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    Once today's preoccupation with flat caps is put into perspective, other ideas for fixing the legal system come into sharper focus. Ranging from the specific to the creatively broad, they focus on the unpredictability of noneconomic damage awards, lifting the liability burden from individual doctors, weeding out nonmeritorious claims, and making award decisions smarter:

    Develop a sliding scale for noneconomic damages. To avoid the problems inherent in flat caps, some commentators have suggested the use of schedules or sliding scales. As the severity of injuries increases, so would the noneconomic component of any total award. "The maximum award in every severity bracket would be capped," writes David Studdert and his colleagues, "but at a level more commensurate with the severity of the injury than a flat cap permits."

    The probable result, he says, is that temporary or minor injuries would receive lower awards than under flat caps, and grave injuries would receive higher awards. That relative shift, say proponents, would lead to overall cost savings, on the one hand, and enhanced fairness for the severely injured, on the other.

    Caution is in order, however. First, "savings at the low end may not offset more generous compensation at the high end," say the authors, in which case overall costs would actually rise somewhat. Second, lumping all injured patients with the same severity level into a single category and then limiting the maximum award they're entitled to may not be fair ultimately, says Case Western Reserve's Max Mehlman. Still, despite these potential problems, many think schedules or sliding scales can, in fact, be made to strike the proper balance between cost-containment and fairness.

    Shift the liability burden to institutions. Referred to as "enterprise liability," this reform places legal responsibility for malpractice claims on the hospitals, group practices, clinics, health plans, or university medical systems in which doctors work, rather than on the individual doctors themselves. Because enterprise liability premiums would vary depending on an institution's experience rating, the option would serve as an incentive for hospitals to cut down on systemic errors.

    On the plus side, say supporters, enterprise liability would consolidate defense costs, encourage individual doctors to report errors (because they no longer fear liability), and lead to institution-wide changes in patient safety. A potential drawback—not every doctor belongs to a big institution, so potentially thousands of office-based physicians would be left to fend for themselves. But for the thousands of doctors employed in institutional settings, enterprise liability could be a viable and liberating option to their current individual liability, say proponents.

    Expand "certificate of merit" to more states. Having survived various legal challenges, this early provision to weed out meritless malpractice claims is still in effect in at least 17 states. In these states, injured patients who file a claim must first take steps to have that claim reviewed by an outside expert, who must testify to its merits.

    Individual state requirements vary significantly. In some states, for instance, the expert himself must issue the certificate of merit; in others, it's the plaintiff's attorney who must certify that the expert has reviewed the claim. Some states demand little more than a simple statement, while others require greater specificity—what the applicable standard of care is, in what ways the defendant breached it, how this led to the plaintiff's injury, and so forth.

    The effectiveness of these provisions hasn't been empirically confirmed. Nevertheless, experts like Catherine T. Struve of the University of Pennsylvania Law School think they're potentially useful. As she writes in a study for the Project for Medical Liability in Pennsylvania, funded by the Pew Charitable Trusts, certificates of merit are "unlikely to change" the way malpractice lawyers evaluate cases, because they already seek prior expert advice. But by requiring "nonspecialist attorneys" to obtain a certificate of merit, the system "may lower the number of weak claims filed."

    Establish pre-trial screening panels. Over the years, 31 states have enacted such panels, but, to date, 11 states have either repealed or invalidated their provisions (legal challenges have tended to focus on time delays).

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    Wayne J. Guglielmo
    For 12 years, Wayne has written on health policy and related issues for Medical Economics. He also writes the magazine's ...

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