An article in the New England Journal of Medicine discusses the emerging "disclosure-and-offer" approach to medical malpractice reform in light of some constitutional challenges that tort reform efforts have faced. The authors argue that private, non legislative methods can have some significant advantages and goes on to discuss several models of the disclosure and offer approach.
In general, private, institution-led reforms have many advantages. First, most of the reforms can be pursued without legislation. In some states, it is nearly impossible to effect liability reform because of political divisions fostered by powerful interest groups. In others, the legislature is dysfunctional and unable to accomplish major reform or is hamstrung by budgetary problems. Initial optimism that federal health care reform legislation would include major liability reform eventually faded, though the Obama administration has made a substantial commitment to supporting demonstration projects in which health care systems or states implement innovative reforms.
Second, institutional reforms can be led by physician champions and other insiders, promoting buy-in from clinical and risk-management staff. Third, because most private approaches do not abridgelegal remedies, they may be more palatable to consumer groups, trial-lawyer organizations, and patients. Fourth, private approaches can be tailored to each institution's unique culture, systems,and resources. Finally, institution-led approaches represent a market solution governed by market forces. Insurers and health care organizations (and perhaps even clinicians and patients) can "vote with their feet," and successful programs can be expanded and replicated, while unsuccessful ones are discontinued.
The disclosure-and-offer approach has been implemented by a handful of hospital systems and liability insurers, building on an early experiment at the Veterans Affairs hospital in Lexington,Kentucky. Three distinct models have emerged. All begin with an organizational policy of full disclosure of adverse events and training and support for clinicians to aid them in making disclosures. All share a general philosophy of risk management that holds that being candid about medical injuries, apologizing when appropriate, and providing for the patient's financial needs (in at least a limited way) through a quick, accessible process will eliminate the impetus for most patients or families to sue and will spur institutional learning and safety improvement. The models diverge in their specific approaches to compensation.
For the rest of the article, click here: Malpractice Reform -- Opportunities for Leadership by Health Care Institutions and Liability Insurers, The New England Journal of Medicine, March 31, 2010
