Thanks to Common Good for this second part in our breakdown of health courts.
The current system of medical justice fails both patients and providers, and needs comprehensive reform. It is unpredictable, emotionally wrenching, and staggeringly inefficient. Under the current system, most patients who are harmed by medical errors get no compensation at all. A recent study by Professor David Studdert et al. at the Harvard School of Public Health found that of the malpractice claims analyzed, one in six claims was an unpaid error. The study also found that those who are compensated endure and average of five years of litigation and see more than half of their awards spent on overhead costs. According to the study, for every dollar paid in compensation to plaintiffs, 54 cents go to overhead, a rate much higher than other compensation schemes such as workers compensation, in which overhead costs amount to roughly 20-30% of costs. Not only are lawyers compensated to a greater extent than injured patients, but the lawsuits go on for years. The high costs and lengthy process also prevents some patients from seeking redress through the tort system as many lawyers will not take cases unless they see the potential for a lucrative win. It’s simply not worth their time otherwise.
At the same time, nearly universal distrust of justice drives up costs – billions of dollars are spent in defensive medicine alone – and drives down quality, chilling the open professional interaction essential for effective care. As the Institute of Medicine has noted “[p]atient safety is also hindered through the liability system and the threat of malpractice, which discourages the disclosure of errors. The discoverability of data under legal proceedings encourages silence about errors committed or observed. Most errors and safety issues go undetected and unreported, both externally and within health care organizations.”
The current system pits doctors and patients against each other, when the two are not, of course, natural enemies. Both need what justice today is not providing – reliability. Patients need a reliable system to hold doctors accountable when there's a mistake, and doctors need a reliable system to protect them when unfairly charged.