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Win-win-win On Malpractice Reform?

As the Times notes today, some advocates of health care reform--including the one that sits in the Oval Office--are thinking about reforming the medical malpractice system. Although a traditionally conservative cause, there's a compelling reason why liberals might support it: The current system doesn't actually compensate most people who are victims of medical errors.

A system that simultaneously changed that fact, while offering physicians some relief. Most studies suggest malpractice lawsuits are not a major reason for high medical spending, even when you account for defensive medicine. But that doesn't mean it doesn't make the medical community unnecessarily anxious.

This week's New England Journal of Medicine outlines three possible paths for reform.

The first approach calls for state experimentation with innovative programs adopted by liability insurers, sometimes called disclosure-and-offer programs, in which health care providers disclose unanticipated outcomes of care to patients and make prompt offers of compensation in appropriate cases. Patients do not waive their right to sue by accepting the offer, but reportedly, few go on to file lawsuits. While he was a senator, President Barack Obama cosponsored legislation to promote this approach.4 These programs appear promising, though they have never been formally evaluated.

The second approach is to shift the adjudication of medical malpractice claims to a new kind of tribunal--either an administrative panel that would award damages on the basis of judgments by neutral experts about the avoidability of the injury or specialized judicial courts presided over by judges with medical expertise. This approach is attractive on its merits; it would address several fundamental problems with the current system, in which juries make decisions with scant guidance on complex scientific issues and what constitutes reasonable damages awards.

A third approach would be to create a federal "safe harbor," retaining the current process of adjudication but insulating physicians from liability if they adhered to evidence-based medical practices. For example, legislation introduced by Senator Ron Wyden (D-OR) in February would create a rebuttable presumption that care was not negligent if the physician followed accepted clinical practice guidelines. Similarly, physicians could be given immunity or a favorable presumption if they practiced in accordance with findings of credible comparative-effectiveness research (CER).

The politics of pushing through malpractice as part of health reform is tricky; trial lawyers, for one may have something to say about it. But, on the merits, it's an interesting idea. And if it helps win over physicians to the cause of health reform, well, that would certainly be helpful too.

--Jonathan Cohn