They identify three options: Disclosure and offer programs (a kind of Offer to take judgment-cum apology), Administrative or Specialised Tribunals (with "neutral experts or neutral adjudicators"), and Safe Harbors" (legal defenses for adherence to evidence-based practices).
Would these measures accomplish much? No, but Mello and Brennan recommend doing it anyway. Why? Because health care reform "will entail changes in the payer mix that are unfavorable for providers and exert continued downward pressure on reimbursment rates."
The connection? Reformers should offer MD's a "quid pro quo". Malpractice reform would be welcome because "most physicians find the litigation system unfair, financially and psychologically burdensome, and unhelpful in promoting safety and quality. They would welcome relief of some sort."
This is sincere but unpersuasive advice. If medical malpractice reform is to be enacted it should be on the merits, e.g.
- the proposed reform improves deterrence of poor care, or
- increases rates of compensation of the negligently injured, or
- decreases costs while preserving other values.
A medical malpractice reform bone is unlikely to win much support from skeptical physicians. Physicians' attitudes are driven by ideology and anecdote, not data - as Tom Baker has demonstrated in The Medical Malpractice Myth (2005). Mello and Brennan know this from their own research - such as their demonstration that flu vaccines generate only negligible amounts of litigation, contrary to what many consider common knowlege. See Mello and Brennan, Legal Concerns and the Vaccine Shortage, JAMA, October 12, 2005—Vol 294, No. 14.
Medicare hell-holes
Since we spend 6 - 7% more of GDP on health care than other advanced countries of similar levels of public health we need to look beyond myth. Atul Gawande in the New Yorker has done just that. In The Cost Conundrum he discusses what a Texas town can teach us about health care. Hidalgo County, south Texas, is a "Medicare hell-hole". Costs are not driven by Tex-Mex cuisine, but by gorging on tests and procedures ordered by unsalaried doctors who get paid by the procedure and are subject to no significant institutional controls.
Gawande concludes that unlike procedure-driven pricing at Doctors Hospital at Renaissance in Edinburg Texas, we should adopt the salaried physician and medical management approaches demonstrated by the Mayo Clinic in Minnesota. "If we brought the cost curve in the expensive places down to their level, Medicare’s problems (indeed, almost all the federal government’s budget problems for the next fifty years) would be solved", he argues.
This is the approach taken by President Obama, who lauded Mayo Clinic in his recent address before meeting with Senate Democrats.
Regarding medical malpractice reform, as a former practicing RN in Labor & Delivery in a relatively small Birth Center, I observed a relevant emerging pattern. The MDS with poor/objectionable practices (there were 3 of them) were widely recognized by other doctors in the field as poor practitioners but did virtually nothing substantial about it i.e.complaints to the Medical Board. The MDs committing malpractice (all 3 of them) eventually left town for a number of years or more when they lost their malpractice insurance. One went into the military, one came back to practice in a different field and the third came back a couple of years later only to continue committing malpractice.....If MDs aren't willing to police themselves then they will have to suffer the consequences of high malpractice rates due to large judgements against the egocentric incompetents. It's the only reasonable recourse for those who have been devastated by medical malpractice.
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