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    Behind the med-mal crisis
    Beyond stopgap: Medical system reforms

    Reducing errors, say experts, will reduce doctors' liability.

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    This final facet of comprehensive reform is, in many ways, the most neglected, some commentators have pointed out. In a recent opinion piece in Annals of Internal Medicine, internist Stephen C. Schoenbaum and attorney Randall R. Bovbjerg argue that "the heated debate" over rising malpractice premiums and tort reform has "cast little useful light" on what doctors should do to "make care safer and injuries rarer." (The Institute of Medicine report estimated that as many as 98,000 Americans may die each year in hospitals as the result of medical error.)

    The authors add that if doctors want the public to become more forgiving when problems arise, they need to convince society that they're actively seeking to guard patient safety and learn from errors. Ideas on how they can better do that range from specific doctor initiatives to broader federal legislation. We look at several proposals below:

    Develop practice guidelines for more specialties. Champions of specialty guidelines or standards—which set risk-management protocols and practice parameters—inevitably point to anesthesiologists and their success story. "In 1985, they decided to look at why they were being sued so much," says California risk-management specialist David Karp. "They identified the causes of claims, and then established standards designed to avoid these problems. Since then, their liability exposure has been reduced, they're no longer big malpractice targets, and their premiums have dropped."

    The numbers bear him out. In 1970, nearly 8 percent of all malpractice claims closed were against anesthesiologists; between 1985 and 2001, that percentage had dropped to below 4 percent. The proportion of closed claims involving permanent disability or death also dropped—from 64 percent in the 1970s to 41 percent in the '90s—and so did the proportion of closed claims with payment (by an almost equal amount).

    The effect of all this on premiums has been significant: In 1985, the average malpractice premium for anesthesiologists was $18,112, according to a survey conducted by the American Society of Anesthesiologists. By 2004, that number was just $20,611, only a 14 percent increase over 19 years. And adjusted for inflation, that modest rise becomes a 35 percent drop over the same period.

    Despite such success, some doctors chafe at guidelines and standards because they think they smack of "cookbook medicine"; others caution such an approach can be a double-edged sword, since guidelines and standards can be used against doctors at trial. Still, the approach has merits, experts say. "If other specialties would follow the anesthesiologists," says Karp, "you'd see a dramatic drop in claims, and, therefore, in premiums."

    Make risk management a licensing requirement. Doctors in Massachusetts must complete 10 CME credits in risk management every two years in order to renew their licenses. Credits may be obtained through a combination of ACCME-approved onsite programs and self-study. Required risk management study must include instruction in med-mal prevention, including risk identification, patient safety, and loss prevention. States serious about improving their patient safety record should follow the Massachusetts model, Schoenbaum and Bovbjerg say.

    Provide premium subsidies for safety improvements. The government's fraud and abuse laws make it possible for certain hospitals and other entities operating in a primary care Health Professional Shortage Area or Medically Underserved Area to subsidize malpractice premiums for doctors who routinely deliver babies. Doctors who take specific risk-management and related steps to make their performance and practices safer should also have their premiums subsidized, perhaps by their health plans, Medicare, and Medicaid. Similarly, malpractice carriers serious about risk management should offer discounts and dividends to policyholders who demonstrate the same seriousness.

    Make mandatory reporting universal. Currently, 18 states require healthcare facilities to report medical errors or adverse events to a medical board or other government entity. (Individual providers may be required to report directly to the facility.) These laws vary considerably on questions like who's considered a healthcare provider, which errors are reportable, and what must be done to protect whistleblowers and others filing reports. (New Jersey permits anonymous reporting.)

    Safety advocates not only complain that the list of reporting programs is too short, but that those that do exist vary so widely that comparative analysis is difficult. Some have urged Congress to take up a recommendation put forward by the IOM, which calls for a nationwide mandatory reporting system.

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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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