The current medical malpractice environment has grown slightly less treacherous for doctors over the past seven to 10 years, with payouts falling and premiums remaining relatively flat, according to research published in the Journal of the American Medical Association.
But this stabilization of the market has not been due to traditional liability reforms such as those capping damages or scrutinizing qualifications of expert witnesses, according to the authors, Michelle M. Mello, Ph.D., David M. Studdert, both of Stanford University, and Allen Kachalia, M.D., of Harvard University.
“Regardless of their ability to achieve their stated goals, traditional reforms do not address problems with the malpractice system’s two core functions–compensating negligently injured patients and deterring substandard care,” they wrote. “The weight of evidence suggests that the system’s effectiveness as both a compensation and a deterrence mechanism is mediocre at best, and there is little to suggest it has improved over the past decade.”
A more promising approach to resolving these problems, they argued, may come from expansion of alternative forms of dispute resolution such as the following:
• Communication-and-resolution programs, such as “disclose, offer and apologize” programs used in Michigan, Oregon and Massachusetts, in which providers work with their liability insurers outside of the court system to offer a prompt investigation of an adverse event, followed by an explanation, apology and fair monetary compensation if warranted.
• Safe harbors that offer physicians stronger legal protection if they were following preapproved clinical guidelines when the injury or bad outcome occurred.
• Judge-directed negotiation, in which a single, specially trained judge leads parties through a series of settlement conferences.
• Administrative compensation systems, such as the patient compensation system proposed recently in Georgia. Under such a law, which has yet to pass in any state, physicians and hospitals would no longer be sued for medical malpractice. Instead, hearings would be held in front of a panel of healthcare experts. Should the panel find that a medical injury was preventable, the patient would receive compensation.
“Nontraditional approaches are also more politically and ethically appealing because they stand to benefit not just physicians and insurers but also patients,” the authors wrote, adding that further testing and wider implementation of alternative systems would be necessary.

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