Question

Healthcare stakeholders disagree about the impact of legal risks, medical malpractice claims, tort reform, and defensive medicine on the cost of care and the cost of health insurance in the United States, as well as the importance of such impact. How do legal risks, medical malpractice claims, tort reform, and defensive medicine impact the relationship between healthcare providers and patients? How should they impact the relationship? Make three suggestions to improve existing healthcare policy based on your analysis of impacts on the provider-patient relationship. 1. Your analysis of the issue or situation 2. Your assessment of the impact on key stakeholders 3. Your clear recommendations on a course of action or policy

Answer 1

1. Analysis of the situation

a. Insurance malpractices: Most physicians carry malpractice insurance that covers the defense costs of claims as well as any award that is paid. Examples include malpractice premiums, claims frequency, or claims severity

b.Medical negligence: Consists of simple torts and dangerous torts and according to a Harvard medical journal many injured patients fail to make claims.

c. Too much precaution: Although doctors are largely insured against the financial costs of malpractice suits, the uninsured nonfinancial costs such as lost time, stress, and damage to reputation may be far more important.

d. Negative defensive medicine: On contrary to positive defence medicine, in negative defence medicine, patients reap substantial surplus from medical care for which they cannot adequately compensate providers, and providers bear malpractice risk for which they cannot fully charge patients.

2. Assessement of the impact on key stakeholders:

a. Opinion surveys of physicians show that the existing malpractice system leads to both positive and negative defensive medicine but this approach only provides information about physicians’ self-reported perceptions: it does not measure actual medical decisions.

b. The defendant: Economic loss, rather than fault, is consistently the most important characteristic of claims in determining the probability and size of award.

c. Plaintiff:  By default, the doctrine of joint and several liability allows a plaintiff to collect all of his damages from any defendant, regardless of the extent of the defendant’s fault.

d. Most of the studies show how tort reforms affect doctors’ incentives; they do not show how tort reforms affect doctors’ behavior. To find the impact on doctor's behaviour comparing how the costs of precaution, and losses from adverse events, respond to changes in the legal environment is a direct step.

3. Recommendations

a. Enterprise liability: Systems in which healthcare organizations bear at least some of the liability for malpractice that is traditionally borne by doctors.

b. Guidelines-Based Systems: To promote evidence-based medicine and to inform physicians of best clinical practices.

c. Alternative Dispute Resolution that is binding. Agreements should be formed between providers and patients to submit disputes over alleged malpractice to a third party other than a court.

d. Administrative Compensation Systems: (i) Health courts model: It substitutes a specially trained judge as the finder of fact and arbitrator of law for the current system’s generalist judges and juries.
(ii) No fault model: Uses an administrative body rather than a court.

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