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OP-ED; Patients' Choice Would Give Malpractice Healthy Overhaul

Posted on: Sunday, 21 November 2004, 18:00 CST

The most common proposals for reforming the medical malpractice system, such as setting caps on the amounts that can be awarded for pain and suffering, don't really solve the underlying problems.

The current system doesn't really work to the advantage of patients. Rather, patients should have the ability to opt out of the system altogether - and to pocket the resulting savings.

The costs are not trivial. Over the past 10 years, malpractice claims in Massachusetts have been just over $1 billion. But money is only the tip of the iceberg; having their professional competence and integrity questioned in such a public way can be devastating to doctors.

Of course, no one wants to protect incompetent doctors. But in the last decade, the Board of Registry in Medicine reports that one of every four obstetrician/gynecologists has paid a malpractice claim, as have more than 10 percent of doctors in orthopedic, general and neurological surgery.

It is simply beyond belief that 25 percent of ob/gyns or 10 percent of our orthopedic surgeons are medically incompetent, particularly when only 3 percent of pediatricians and psychiatrists have paid claims. Of course, the birth of a deformed baby is heartbreaking, but blaming innocent doctors for natural misfortunes isn't the solution.

Indeed, soaring premiums and the threat of unwarranted lawsuits are driving thousands of doctors across the country into premature retirement. Will mothers really be better off if there are no longer enough doctors willing to deliver babies?

In addition to the actual claims paid, there's also the cost of defensive medicine - ordering tests that are not medically essential but are aimed at protecting the doctor from the potential accusation that he or she failed to check out every possibility. Most important, doctors and hospitals cannot easily discuss how to prevent future errors when discussing past errors can lead to a devastating law suit.

As a practical matter, we as patients (and our employers) - not just doctors - are paying the price. The cost of malpractice insurance premiums and those unnecessary tests are built into health- care insurance rates.

I'd like to opt out. I'd be willing to sign away my right to sue my doctor for malpractice, as long as four safeguards were in place:

- That I enjoy the cost saving via lower health-insurance premiums.

- That my doctor contributed to a fund that covered on a no- fault basis any out-of-pocket costs arising from medical errors.

- That my doctor was part of a systematic program to reduce medical errors.

- That my doctor no longer practiced defensive medicine. I think I'd get better care at lower cost.

But I have no desire to impose my preference on others. Each of us could decide whether to go to Doctor A (no malpractice claims allowed) or Doctor B (fully liable for malpractice). Of course, no one would go to Doctor A if she charged the same as Doctor B. On the other hand, with her lower costs, Doctor A could afford to charge less.

We'd have a market solution; patients could decide whether the extra cost of malpractice coverage was worth it to them.

We might start by limiting this to, say, 500 ob/gyns, as the specialty most at risk. But if it worked, we'd expand it, so doctors also would have free choice. Probably, most would choose to be in the Doc A category. But to attract patients, they'd have to find a way to lower prices, while scarce Doc B's would command a premium.

Lawyer friends tell me this can't work; people can't really sign away their right to sue, and courts inevitably would award damages to someone who supposedly had relinquished the right to such compensation.

As an economist, I can only point out the advantages of such a solution and hope the Legislature and the legal community can find a way to make it work once they understand its advantages.

The market mechanism can't solve all problems, but it has something to offer here.

Ed Moscovitch is president of Cape Ann Economics.

Source: Boston Herald

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