05/25/2010 05:12 am ET Updated May 25, 2011

Tort Reform: An Elephant In The Room

Emerging from under the rocks in the current healthcare debate is the whisper of tort reform. The historic Health Care Reform bill contains a provision to award five-year grants to select states to develop alternatives to current tort litigation. This issue is on our President's radar (

Tort reform is complex, yet we have mostly heard only about frivolous lawsuits, lottery-laden settlements and the need for caps on awards. However, to truly address this issue, much more of the story must be told.

In 1999, a landmark study, To Err Is Human, was presented at a Senate hearing held by Senator Arlen Specter. The lead author, Dr. Lucian Leape - a professor of health policy at Harvard - stunned the room with this finding: Upwards of 98,000 people were dying each year due to doctors' errors. Frankly, the very title of the report offends, suggesting doctors make mistakes and shouldn't be held to a higher standard; after all, they are human and errors happen.

I was present at that hearing in 1999, seated at a witness table with friends - a doctor and his nutritionist wife who were testifying about their 23-year old son's death at a New York City hospital. Reckless endangerment, cover-ups and a lack of oversight were prevalent in their son's case, with the attending "doctor" being a green, unsupervised resident (a shockingly common practice, especially at "teaching" hospitals) who was subsequently spirited out of the country and set up with a cushy job at a pharmaceutical company abroad, making him unavailable to testify in their lawsuit against the hospital.

A settlement was offered, with the standard non-disclosure clause - payment for silence, a hallmark of malpractice litigation that must end. The parents declined, wanting their son's story to be heard, and instead studied the law for years in order to represent themselves and their deceased son pro se. Eventually, their case made it to the Supreme Court, where it was rejected and dismissed.

The time has come to revisit To Err Is Human. A 2009 Hearst newspapers study concluded that approximately 200,000 Americans die every year from preventable medical errors and associated infections, with untold numbers maimed or injured.

If we are to deal with this crisis and create effective, fair tort reform, we must address the following issues:

1. OPMC: How do the states currently "protect" patients? That is the role of the Office of Professional Medical Conduct (OPMC), a state agency that monitors doctor performance. Yet it only acts when a complaint is made. Disciplinary action and withdrawal of a medical license are rare, and cases can languish for years, only to be dismissed with a finding of no substandard treatment by the doctor.

In 2009, the consumer advocacy organization Public Citizen reported a significant decline in many states in the reporting of doctor errors and disciplinary action by OPMC, compared with years past. Were doctors suddenly more proficient, or was it more likely that OPMC had fallen asleep at the switch? An independent audit of OPMC must be conducted to reset standards and performance guidelines, and they must refocus their efforts on prevention, not reaction.

2. Time and Money: Victims of malpractice can often wait years for their day in court, with lawyers refusing to take any case they are not almost certain to win. And those multi-million dollar settlements we read about in the newspapers? They are the rarity, not the rule. Most cases, if settled, wind up with an average payment of about $42,000, and here in "enlightened" New York, we still use a Wrongful Death Law from 1847 that in essence bases compensation on your earnings, penalizing children and the elderly due to their apparently lesser value to the state. This archaic law must be revised to reflect today's realities. Additionally, the courts regularly thwart due process, with most cases never making it to trial, so this process must also be reviewed.

The dirty little secret here is that payouts from "med mal" lawsuits represent only 0.55% of total health care costs (Medical Malpractice Claims Negligible, Dispatches in the September 15, 2009 issue of The Progressive Populist by J. Robert Hunter, Consumer Federation of America); hardly impacting. And from those payouts, lawyers will claim roughly 1/3 of the total - plus expenses - while health insurance companies will seek reimbursement for their costs in treating the victim due to the malpractice.

3. Regulation and Litigation: In those nations with national healthcare, medical malpractice is a non-issue, with effective oversight and regulation helping to minimize its occurrence in the first place. Additionally, specialized medical courts, like those used in Germany to settle complaints, should be studied and implemented here.

But even before reaching court, an effective system should be created in every hospital that concerns itself with the safety and wellbeing of its patients. That would mean looking at how Risk Management Offices work. Their function is to protect the hospital and its doctors, not the patients. Community-based arbitration boards should be set up in each hospital made up of knowledgeable citizens, medical professionals AND victims, along with legal counsel to hear and resolve complaints. This is worth a pilot project.

4. Malpractice Insurance Premiums: Doctors' malpractice insurance premiums must also be addressed. The five-minute doctor's appointment has doctors on a treadmill, chasing dollars to cover their huge expenses and their excessive liability insurance; a disservice and danger to patients. And those abundant tests and procedures to protect themselves from litigation contribute significantly to our ballooning costs in health care. Doctors should also not be burdened with higher premiums whenever the insurer loses money in their investment portfolio. Surely there are ways doctors could self-insure in a non-profit entity, cutting out the proverbial middleman?

5. Sharing Information: The National Practitioner Data Bank must be opened up to the public to make it an effective tool to inform and protect patients. It cost millions of taxpayer dollars to create, but only serves the medical community. That in one year only 70 reports of medical malpractice were made is unacceptable.

A much-needed dialogue on overhauling the tort system in healthcare is at hand. Let the discourse begin on this very complex issue.

( Additional content provided by Jon Stone)