THE WAY I SEE IT

No-fault is the way to go

It's time to stop blaming doctors, and take medical injury cases out of the courts.

By Mark D. Schmidt, MD
Family Physician/Springboro, OH

Consider the case of a 39-year-old woman with a long history of irritable bowel syndrome and interstitial cystitis. She'd had regular gyn checkups, numerous negative tests, and consultations with specialists. She had seen her gynecologist nine months before she presented at the ED with acute abdominal symptoms, which led to a diagnosis of ovarian cancer.

Her remaining days required considerable money for home and hospital care. Who should pay for that care? In our current age of technological marvels, too many people expect perfection. They believe that any failure must be someone's fault, and that "bad luck" just doesn't exist.

It's no surprise that she sued the gynecologist, since she felt he was responsible for her misfortune. The case later settled for more than $200,000.

Why is it assumed that the doctor must be responsible? Unfortunately, doing all one can humanly do for a patient doesn't always result in a good outcome. In this instance, the gynecologist followed appropriate guidelines.

Our tort system encourages patients to blame the doctor for their misfortune. It also breeds mistrust between doctor and patient. But the system doesn't have to work this way. Society already has other methods for compensating victims of floods, tornadoes, and other natural disasters. Why not for medical injuries as well?

I'm arguing for replacing our current system with objective panels of medical experts who would determine the nature of the injury, its likely consequences, and a reasonable amount of compensation. Such a system would restore physicians to their traditional role as patient advocates, not judicial adversaries. Physicians would be part of the process that verifies rather than questions patients' claims. Deserving victims would likely receive at least as much compensation as before, since they wouldn't have to give up 30 percent or more for their lawyer's contingency fee.

Critics warn that such a no-fault system would encourage claims by cheaters. Perhaps, but how is that different from the current method, which also encourages frivolous suits? Besides, an objective panel with appropriate training—as opposed to a typical jury—could weed out nuisance claims, or reduce payments accordingly.

Where will the money come from to finance my proposed system? Instead of malpractice insurers charging doctors ever-increasing premiums, the public may have to accept a general increase in taxes to compensate victims of medical injury.

Critics also worry that if we abolish the current system, doctors' standards might fall. Please! Most physicians take great pride in their profession, and are dedicated to providing quality care. But no two doctors, patients, or clinical situations will ever be identical, and it's unreasonable to expect perfection in every case.

I can't guarantee that my proposal will satisfy everyone. But it's obvious that the current system isn't working. Doctors are leaving medicine because of sky-high premiums, or stopping high-risk procedures for fear of lawsuits. Meanwhile, malpractice carriers are dropping coverage for high-risk specialties, or getting out of the business entirely. Something must be done to fix the system—and soon, before physician shortages become a reality.

 

Mark Schmidt. The Way I See It: No-fault is the way to go. Medical Economics Jun. 6, 2003;80:71.