The Journal of Health Care Law & Policy Volume 9, Number 2

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1 The Journal of Health Care Law & Policy Volume 9, Number 2 Beyond the New Medical Malpractice Legislation: New Opportunities, Creative Solutions, and Best Practices for Patient Safety, Tort Reform and Patient Compensation Please note that the following abstracts are the work-product of journal staff members and are not the work of the authors themselves. If you wish to access the full text of any of these articles, they are available electronically on the Westlaw and Hein Online research databases, or can be obtained in hard copy by contacting the William S. Hein Co., Inc., at or at ************************************************************************ The Role of Medicare in Medical Malpractice Reform William M. Sage William M. Sage argues that despite the existence of today s medical malpractice crisis, lawmakers have not conceptualized a real connection between the malpractice system and the health care system. While much of malpractice reform involves reducing frivolous lawsuits and excessive damages awards, the reform project also addresses the problem of volatile liability insurance premiums, the need to reduce rates of medical error, and the need to improve the litigation process. Sage advocates for a comprehensive malpractice reform project that focuses on improvements to patient safety, liability insurance, and dispute resolution. Sage believes that the Medicare program should take a leadership role in the reform process. Medicare s administrative system of adjudication creates potential for the establishment of health courts; and Medicare politics better address health care than the general politics of traditional tort reform. Moreover, Medicare could initiate malpractice reform by sponsoring federal demonstration projects that would alter the manner in which Medicare beneficiaries are treated when medical error causes injuries. Sage notes that while there are some obstacles to be overcome in order for Medicare to guide malpractice reform including concerns about federal authority such obstacles are not insurmountable. Sage adds that a prudent step in achieving Medicare malpractice reform is for Congress to explicitly authorize voluntary Medicare demonstration projects. In Sage s view, reform should not be sweeping, but should begin as a voluntary pilot program with opt-in incentives designed to attract extensive participation. Following adequate implementation, this voluntary approach could dramatically change medical liability and greatly benefit the public and the health care system. A New Prescription for America s Medical Liability System Paul J. Barringer, III

2 The article analyzes the role of administrative health courts in the adjudication of medical malpractice disputes. Paul J. Barringer, III describes the context in which the proposal of a health court system has gained currency, the fundamental elements of this proposal, and the growing coalition of supporters. Barringer provides a brief history of the malpractice crisis and analyzes the ways in which the current medical liability system has failed. Barringer argues that the current system compensates few injured patients, has high administrative costs, and provides little deterrent effect on inadequate practices. Barringer notes that, overall, the current system affects negatively the culture of the medical profession and hinders quality improvement by discouraging providers from disclosing information about adverse events. The article discusses in detail some of the key elements comprising the health court proposal: specialized health court judges, new liability standards, evidence-based guidelines to aid in medical decision-making, and scheduled compensation. The last section of the article gives an overview of the current political initiatives to implement the health court proposal, and underscores that health experts and scholars have expressed support for the idea of an efficient health court system. Medical Liability and Patient Safety Reform: Are Health Courts and Medicare the Keys to Effective Change? Randall R. Bovbjerg Randal R. Bovbjerg examines attempts to reform the medical liability system from a perspective that takes into account the quality-improvement and patient-safety movements that have been gathering support since the early to mid-1990s. The article discusses both the Medicare led reform and the health court led reform, identifying both proposals as long term solutions. Bovbjerg notes that program implementation, injury resolution and the scheduling of damages are three problematic areas of the Medicare and health court reform models. Despite these drawbacks, Bovbjerg identifies the federal vaccine compensation model and the Federal Tort Claims Act as two examples of successfully implemented health court and tort-based reforms. Bovbjerg concludes that reforms of malpractice should be judged on how well they can combine the tort adjudicatory system that now compensates some injured patients and the emerging systems that seek to improve medical care and safety for all patients. Health Court and Malpractice Claims Adjudications Through Medicare: Some Questions Timothy Stoltzfuz Jost Timothy Stoltzfuz Jost begins the article by addressing the inadequacies of the current malpractice system. Jost argues that the tort-based system has significant shortcomings: the identification and redress of injuries due to medical negligence, the attainment of adequate and timely compensation for losses, the administrative costs of litigation, the continued increase of malpractice premiums, and the defensive practice of medicine. Jost then focuses on two new models of reform: the health courts model proposed by Paul J. Barringer and the Medicareoriented model suggested by William M. Sage. Jost then articulates a critique of the health court model, noting that questions remain regarding the actual structure of the proposed

3 administrative health tribunals, the system s ability to fairly schedule compensation for loss, the tension between lowering administrative costs and providing victims with adequate legal representation, and doctors willingness to admit fault in non-traditional courts. Jost argues that the Medicare proposal addresses some of the problematic aspects of the health court model by attempting to improve quality and safety for patients and expanding access to compensation while limiting claims to those above certain thresholds of injury. However, the Medicare proposal also leaves unanswered questions regarding the efficacy of the program s enforcement, the capacity of the system to hear malpractice claims, and the methods of liability assessment. Jost concludes that although these frameworks offer a novel approach to medical malpractice, the proposals only adapt the workers compensation model to the medical malpractice context. Jost suggests that an evaluation of the advantages and disadvantages of the workers compensation model may yield valuable analytical information by which to assess the new medical malpractice models. An Advocate s Response to Professor Sage Toby S. Edelman Toby S. Edelman, an attorney representing Medicare beneficiaries, expresses in this article his opposition to the health courts and Medicare models proposed to reform the current medical malpractice system. Edelman argues that the creation of health courts and the expansion of Medicare s administrative appeals process to include malpractice claims would adversely affect Medicare beneficiaries ability to receive compensation for torts. Edelman also states that both of these proposals would make recovery of non-economic damages less probable for Medicare beneficiaries. Moreover, according to Edelman these reforms may destroy the potential that the tort system offers for significant institutional change. Edelman also maintains that the implementation of health courts may involve other dangers, which include the politicization of decision-making, a narrowed perspective by judges, and higher costs to litigants. Furthermore, Edelman notes that Medicare is currently creating an entirely new appeals process. The many uncertainties presently facing the Medicare system add unwarranted risks to the proposed expansion of the system to accommodate malpractice claims. The Patient-Physician Relationship and its Implications for Malpractice Litigation Debra Roter, DR. P.H. Debra Roter proposes that the current medical malpractice environment is fueled by communication and relationship failures. The article begins with a discussion of patients dissatisfaction with communication with their physicians and suggests that malpractice suits may be related to this dissatisfaction. The article then evaluates the negative impact of malpractice litigation on physicians. Specifically, Roter correlates the impact of litigation to the development and expression of risk-related behaviors and negative emotions toward patients. Roter concludes that it is possible that sued physicians have conveyed more negative emotions toward their patients, inadvertently projecting suspicion, irritation, or disapproval in their nonverbal expressions. The article proposes that some of these failures may be repaired through a broader understanding of the dynamics of communication in medical visits, physician

4 training to enhance communication skills, and an appreciation for the role of reciprocated emotion in the patient-physician relationship. But I m an Adult Now... Sort of Adolescent Consent in Health Care Decision-Making and the Adolescent Brain Paul Arshagouni Healthcare decisions for adolescents can range from receiving a vaccination to refusing treatment after failed organ transplants. Paul Arshagouni examines the question of whether adolescents should be allowed to make independent healthcare decisions. Arshagouni examines the physiological and cognitive premises for distinguishing adolescence from adulthood and explains the various legal doctrines underlying the theories of autonomous choice. Focusing on studies on adolescent brain development, Arshagouni draws attention to the incomplete maturation and the significant reorganization of the brain during adolescent years. Accordingly, Arshagouni concludes that the best approach to address issues of adolescent consent is to allow decisional choice in routine, low-risk procedures while creating a rebuttable presumption of no decisional capacity for high-risk procedures. The Increasing Necessity of the Tort System in Effective Drug Regulation In a Changing Regulatory Landscape Anne Erikson Haffner The Comment examines the role of the tort system in effective prescription drug regulation. Anne Erikson Haffner provides an overview of current and proposed tort reform measures and their intersection with FDA regulatory frameworks. This overview focuses on the regulatory compliance defense to manufacturer liability, which insulates manufacturers of pharmaceuticals who comply with FDA regulations from tort liability or liability from punitive damages. Haffner then evaluates the effects of various reforms on the pharmaceutical industry, the FDA, and drug consumers. Haffner concludes that the tort system provides superior remedies in cases involving industry non-compliance with post-marketing FDA regulations, as well as in contexts where consumers remain vulnerable due to inadequate FDA enforcement of the existing drug advertising regulations. Time for Plan B: Increasing Access to Emergency Contraception and Minimizing Conflicts of Conscience Erica S. Mellick Erica S. Mellick discusses obstacles to emergency contraception and possible ways of making this type of contraception available to more American women. Mellick argues that emergency contraception is beneficial for society, particularly given the high number of contraception failures among women of reproductive age. Mellick notes that the benefits of this birth control option remain unavailable to many women because of the Federal Drug Administration s

5 treatment of Plan B s over-the-counter approval and because health care providers often refuse to fill valid Plan B prescriptions for reasons of conscience. Mellick then considers ways to maximize access to emergency contraception while minimizing pharmacists conflicts of conscience. Mellick argues that the FDA is in the best position to implement a regulatory solution to this problem by making emergency contraception available on an over-the-counter basis. Mellick emphasizes that, regardless of emergency contraception s final FDA status, clearer federal policies are needed to address the issue of pharmacist refusal clauses, as well as the denial of emergency birth control options in emergency room contexts.