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    Behind the med-mal crisis
    The will to be bold

    Let states test what works—and what doesn't.

    This package of articles is just a sampling of the creative ideas out there. None is perfect, and none alone can address the multifaceted liability problems the nation faces.

    Yet taken together in some combination, these or other ideas equally bold and creative just might lead to a comprehensive, workable solution. Crafted with courage and intelligence, this solution could help tame the premium monster (or at least put it on a shorter leash), while not losing sight of the need to compensate injured patients fairly and reduce the number of avoidable medical errors. (For one state's attempt at comprehensive reform.)

    Of course, any solution needs the right political support to get it off the ground. And in today's super-heated political climate, that's far from a sure bet. Consumer groups, for instance, may feel very passionately about fair compensation for injured patients, but much less so about lowering malpractice premiums. For this reason, any initiative that did the latter at the expense of the former—as even a well-thought-out sliding scale for noneconomic damages might—would be off the table. Conversely, doctors, whose first priority is getting out from under their malpractice premium burden, may view fair compensation as a secondary issue, and anything short of draconian caps on damage awards as a waste of time.

    But there may be a way around such a political impasse.

    In a much-discussed paper on the uninsured, Henry J. Aaron of the liberal-leaning Brookings Institution and Stuart M. Butler of the conservative Heritage Foundation urge a middle way. Instead of debating endlessly while nothing productive happens and millions of Americans get inadequate healthcare or no healthcare at all, the authors urge states to experiment with different remedies, with federal support. Write this political odd couple: "By actually testing competing approaches to reach common goals . . . America is far more likely to find the solution to the perplexing and seemingly intractable problem of uninsurance."

    Indeed. Substitute "malpractice" for the final word in the preceding sentence, and the same blueprint for reaching our common goals would apply.

    In fact, something very much like this approach has already been proposed by Max Mehlman and others. "Social experimentation . . . seems like a good way to identify and test solutions to the malpractice crisis," he writes. To be fair to all "stakeholders," he adds, experiments must have clearly defined measures of success and be sufficiently evenhanded so that one group doesn't win at the expense of another, especially if that group (poorer people, for instance) was worse off to begin with. Experiments must also be time-limited—so that unbalanced and biased reforms don't slip through the backdoor. For reforms to continue either as experiments or final policies, state legislatures must extend them.

    In the end, a completely evenhanded solution—one that treats all groups equally fairly—may not be possible, given our economic limitations. "We may decide that we have to accept a system that isn't optimally fair or even desirable because we can't afford anything else, at least given our other national priorities." Mehlman says.

    In that case, groups will need to horse trade: Doctors, attorneys, patients, and insurance companies must all give up something in order to get other things. (Here again, he stresses, "if someone has to suffer, don't make it people who are worse off at the start.")

    Admittedly, fixing our broken medical liability system won't be easy, whatever tack we take. Still, the price of partisan gridlock is years more of what we already have.

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    Pennsylvania gives it the old college tryIn search of broader solutions to their problems, states in recent years have taken a run at comprehensive reform. In 2002, for example, then Pennsylvania Gov. Mark Schweiker signed a medical-malpractice insurance bill that he touted as balanced and multipronged.

    In fact, the new law was a noteworthy leap forward from past piecemeal approaches: Besides a healthy dose of tort reform (periodic payment of damages, elimination of duplicate payments for past medical expenses, a stricter statute of limitations), the measure also created a new Patient Safety Authority, toughened the clout of the medical board, and gave doctors immediate rate relief through the state's CAT Fund (now the Medical Catastrophe Fund). Once these reforms were all in place, Schweiker announced, doctors could expect a 20 percent annual savings in malpractice premiums.

    Any savings they got undoubtedly helped hard-pressed physicians, but, in 2003, Pennsylvania doctors still had the highest premiums and the steepest premium increases among all states with patient compensation funds, according to the October 2003 Medical Liability Monitor.

    The implied criticism is probably unfair. Indeed, as the Pew study of the state's medical crisis points out, "because the problems afflicting Pennsylvania's malpractice system have developed over time, they will take time to resolve."

    Nevertheless, the 2002 law passed to great fanfare left many of those problems unaddressed, particularly in the area of insurance reform. A stab at comprehensive reform is better than the status quo, certainly, but it's hardly an adequate substitute for the genuine article.

    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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