Challenges to Medico-Legal Reform

1. Challenges to Medico-Legal Reform Edward A. Dauer, LL.B. M.P.H. Denver, Colorado

2. Tort Reform: Here we go again. • Why the existing system needs change. • One example – application of “mediated” post-event provider-patient dialogue. • The ethics of torts law – a challenge to reform?

3. “Tort Reform” 1974, 1986, and today The driver – liability insurance premiums. The arguments – geographical distortions, defensive medicine, healthcare costs, physician alienation. The results – caps, diversions, etc. etc. The Recurring conversation . . . .

4. The Liability InsurancePremium Pricing Cycle • ? • 2004 • 50 60 70 80 90 00 10 • (Curve exaggerated and not to scale)

5. “Tort Reform” 1974, 1986, and today The driver – liability insurance premiums. The arguments – geographical distortions, defensive medicine, healthcare costs, physician alienation. The results – caps, diversions, etc. etc. Legislation Damage caps “Collateral Source” offsets Periodic payments Shortened limitation periods Pre-filing screening panels Mandatory arbitration Others – attorney fees, cost- shifting, insurance market reforms (JUAs) etc. etc. etc. The Recurring conversation . . . . None of which changed anything, except Caps and Collateral Source Offsets which reduced payment “severity” and probably limited premium increases.

6. “Tort Reform” 1974, 1986, and today The driver – liability insurance premiums. The arguments – geographical distortions, defensive medicine, healthcare costs, physician alienation. The results – caps, diversions, etc. etc. “Patient Safety” The cultural and “systems” origins of medical error. Using occasions of error wisely as opportunities for learning. Rational patient restoration (including compensation). Disclosure and related ways of including the patient in the post-event events. Changing the conversation . . . . Patient Safety Act of 2005. Clinton-Obama “MEDiC” bill. Private reform initiatives (COPIC, Harvard Hospitals, VA, Naval hospitals, etc.)State reforms – “PREPS”

7. Tort Reform: Here we go again. • Why the existing system needs change. • One example – application of “mediated” post-event provider-patient dialogue. • The ethics of torts law – a challenge to reform?

8. In the Aftermath of a Medical Accident . . . • What Contributions Can the Law Provide? • Facilitate (or not obstruct) other processes. • Promote restoration to injured patient / family: Compensation and healing. • Use the event to reduce risk of future injuries.

9. Summary Characteristics of Medical Malpractice • Focuses on an individual physician’s judgment, care, diligence, skill and knowledge as applied in one case. • Measures that skill and judgment by comparison with other physicians practicing in similar circumstances. • Is imposed through an adversarial process which: • (1) gives plaintiffs the incentive to assign blame in the starkest and most unyielding terms; • (2) asks other professionals to impugn the physician’s competence; • (3) is public; • (4) expensive; and • (5) linked to professional disclosure and therefore potentially to professional employment.

10. In the Aftermath of a Medical Accident . . . • What Contributions Can the Law Provide? • Facilitate (or not obstruct) other processes. • Promote restoration to injured patient / family: Compensation and healing. • Use the event to reduce risk of future injuries.

11. What Error Prevention Needs What the Tort System Does • Analysis of systems Focus on individuals • Errors are windows into Binary consequences • process functioning for infrequent events • Errors allow improvement Blames people for professional incompetence • Investigation close in time. Occurs long after the events. • Accepts errors as inevitable Process is public, humiliating, and manageable. and seen as punitive. • Involve physicians as No organizational Followup participants in quality. • Requires full and frequent Results in hiding • information. information.

12. In the Aftermath of a Medical Accident . . . • What Contributions Can the Law Provide? • Facilitate (or not obstruct) other processes. • Promote restoration to injured patient / family: Compensation and healing. • Use the event to reduce risk of future injuries.

13. Negligent injury is not well correlated with lawsuits Differences in quality of care (as judged by peer review) do not explain differences in claims history(Entman et al. 1994) HMPS: A highly imperfect match • 7.6 times as many patients suffered injury due to negligence as filed malpractice claims • Only 1 claim in 6 represented a negligent injury “Correct” claims Victims of negligence System load: ~74% Persons suing

14. Is it “fair” to injured patients? • The people least likely to bring compensation claims: • Medicare patients (OR=3.5) • Medicaid patients (OR=3.6) • Low income (OR=2.0) • Age > 75 years (Odds ratio=7.0) (Studdert et al. 2000)

15. Complainants’ motivations following adverse event From Bismark and Dauer (forthcoming 2006)

16. In the Aftermath of a Medical Accident . . . • What Contributions Can the Law Provide? • Facilitate (or not obstruct) other processes. • Promote restoration to injured patient / family: Compensation and healing. • Use the event to reduce risk of future injuries.

17. Additional Liability Does Not Equal Additional Safety • Physicians’ (mis)perceptions of the claim risk. • Physicians’ perceptions of the legal process, including its “hindsight bias.” • “Risk management” manages risks of liability, which are not the same as risks of injury.

18. Proposals in Recognition of Tort Law’s Adverse Effects • More “Tort Reform” • Altered confidentiality and reporting rules • Operational Changes – Disclosure and Apology • Enterprise Liability • Modified No-Fault: ACEs, medical adversity ins. • Process changes – Medical courts • Facilitated Doctor-Patient Dialogue: Make the existing system more effective (or at least less perverse)

19. Tort Reform: Here we go again. • Why the existing system needs change. • One example – application of “mediated” post-event provider-patient dialogue. • The ethics of torts law – a challenge to reform?

20. The Case for Mediation in Connection With Full Disclosure Policies • Confidential • Communication and understanding • Flexible Outcomes • –an aside: The BORIM results

21. If Mediation is a Good Thing,Isn’t Everyone Doing it? • What we know and what we don’t – RM • Anecdotes from here and there • But … the focus groups showed that “mediation” isn’t all “mediation.” • PIAA data circa 1998 . . .

22. PIAA Survey 30 of 33 responding insurers used mediation 43%mediate fewer than 10 claims per year Average number of claims reported per year is 616 Total mediations are ~ 1.5% of all claims. Clear liability and limited damage cases are most often mediated

23. If Mediation is a Good Thing,Why Isn’t Everyone Doing it? • Maybe this is all wrong • Legal barriers – Confidentiality rules, NPDB, etc. • Organizational Inertia and System Myths

24. The ethical presumptions of mediationvsThe ethical presumptions of medical torts • Tort Reform: Here we go again. • Why the existing system needs change. • One example – application of “mediated” post-event provider-patient dialogue. • The ethics of torts law – a challenge to reform?

25. The Objective Utilitarian’s Rationalization for Negligence-Based Malpractice Law not greater • It is negligent to act in a way that creates a risk of harm to another, if the cost or burden of avoiding that risk is less than the harm that might occur. • B = burden of precaution sufficient to avoid the risk. • P = probability that the harm will occur, absent B. • L = magnitude of the potential risk • If B<PL, not taking precaution B is negligent. • If B>PL, not taking precaution B is not negligent.

26. Why is that the “right” formula,even for a utilitarian? The Legal Myth: If we punish people who are careless, we’ll stop people from being careless • Since collective welfare is the sum of individual welfares, then all costs and gains are social costs and gains. • To invest B as way of producing less than B is a waste of social resources; so if B > PL, there is no need to create an incentive for anyone to invest B. • To invest B as a way of avoiding a loss greater than B nets a social gain, so we should create incentives for everyone to take precaution B when B < PL. The Medical Myth: It is possible to avoid doing harm – just don’t be careless.

27. Problems With the Utilitarian Calculus • Historically, it’s baloney. • Empirically, in medical malpractice it doesn’t work. • Ethically, it is vile at worst and questionable at best. • Two patients, equally injured. • Two physicians, equally careless. • Small transgression can get enormous punishment. • As social insurance, it harms those least well off. So why does the system resist change?

28. Explanations From the Philosophers • Payment restores reliability of social norms. • Freedom & Equality are primary; Wrongful equals Blameworthy • It’s a precarious existence out there. • A tort is a wrong, somewhat like a crime. • Aquinas made prudence a cardinal virtue; imprudence is a vice. • You did X to me, I can do X to you. Causation means physical cause and “responsible for.” • Imposing a nonreciprocal risk requires a corrective action.

29. The Ethics of The Arena • Responsibility for the outcome is externalized. • Strange behaviors allowed, e.g, cross-examining the truthful witness. • Privileges protecting information and strategies. • Exploiting process inefficiencies and unequal access are allowed.

30. Summary: The Ethics of Medical Torts • Punishment is appropriate for unintentional harms. • The moral calculus is zero-sum. • “Truth” (You’re wrong vs. I’m wrong) is a higher value than: • relationship (integration) • repair and correction • caring and concern • “Extremism in defense of liberty is no vice.”

31. The Ethics of Mediation Leslie Bender: Competition vs. Caring “Responsibility” is not “obligation for,” but “responsive to.” The dollars in Torts abstracts the people from the suffering. Mediation requires recognition of people and their pain. Utilitarian Liberalism vs. Ethics-of-Care Feminism.

32. The Difference Matters Torts is comfortable Mediation imposes complex moral sensibilities Mediation is not comfortable Mediation asks rights to be subordinated to needs Advocacy vs. candor, responsibility for outcome, information is not contested.