For immediate release: August 18, 2003
For more information, contact Jeff Bendix at 216-368-6070 or jeff.bendix@case.edu

CLEVELAND—The nation is in the midst of a medical malpractice crisis. Doctors and hospitals in many states, including Ohio, are complaining that premiums for malpractice insurance are so high that they are forced to abandon many forms of high-risk practice, such as obstetrics, thus depriving patients of needed medical services.

In response, the Bush administration has tried to pass laws limiting awards in malpractice cases. Many states, again including Ohio, are considering or have enacted changes to their tort laws, tightening the rules under which patients can sue for malpractice and placing caps on how much they can recover. Trial lawyers, meanwhile, say that bad investment decisions by insurance companies, not large damage awards, are to blame for skyrocketing premiums. They also dispute the evidence claiming that caps on malpractice awards have held down insurance premiums.

Overlooked in the argument over who's to blame for the crisis is a more basic question: How fair are the laws to the parties - doctors, patients, hospitals, lawyers, insurance companies - who they affect? And would the reforms being discussed in Congress and state legislatures make the system any fairer?

These are among the questions Max Mehlman set out to answer in his recent study,

"Resolving the Medical Malpractice Crisis: Fairness Considerations." Mehlman, the Arthur E. Petersilge Professor at the Case School of Law, professor of biomedical ethics, and director of the Case Law-Medicine Center, wrote the paper as part of a larger study of the medical malpractice crisis in Pennsylvania, commissioned by the Pew Charitable Trusts.

Overseeing the larger study is William Sage, professor at Columbia University School of Law, and an acquaintance of Mehlman's. "I approached Sage and said, 'You know, no one in the medical malpractice literature has really focused on the subject of fairness in reform. What would a fair malpractice system look like?' And he said, 'That's just what we need,' and asked me to do the report."

The first step, Mehlman says, was to define what fairness means in the context of a medical malpractice system. To do that, he examined the question in terms of substantive issues - the appropriate goals for a medical malpractice system - and procedural issues - - whether the procedures used to achieve justice are fair.

"I then took that set of fairness criteria and applied to the current medical malpractice system. And I was surprised at my conclusion, which is how unfair the current system really is," Mehlman said.

Among the problems with the current malpractice laws, Mehlman believes, is that their objectives often are contradictory. One goal of the system is to punish doctors and hospitals who practice bad medicine. But that conflicts with the goal of improving the overall quality of medical care. "In order to deter poor quality care you have to identify it when it occurs, but the threat of punishment prevents doctors from admitting mistakes, and prevents patients from finding out they have been victims of malpractice, which prevents the system from figuring out how to do things better."

Other problems, Mehlman concludes, are inconsistency, imposing disproportionate costs on doctors who provide high-risk care and their patients, erratic punishment, and the use of rules that are not acceptable to all the parties involved.

In addition to assessing the existing system, Mehlman evaluates some of the proposals for overhauling malpractice laws. He dismisses the idea, recently floated by President Bush and Republicans in Congress, and the Ohio General Assembly has enacted, for capping damage awards at $250,000. "There's no way to defend that idea. It is blatantly unfair because it limits the recovery of those who are the most seriously injured. That contradicts fundamental principles of fairness."

Even the dollar amount of the caps is unfair, because it is taken from a 1975 California law which limited damages for pain and suffering to $250,000. "That was 28 years ago, when the dollar was worth probably twice what it is today because of inflation. So that's just one example of the unfairness of that approach, not to mention that it harms those who, under the current system, would recover more than $250,000."

Mehlman says he is intrigued by a recent proposal put forward by the Institute of Medicine. The idea is for doctors or hospitals to inform the patient right away when they've made a mistake, and patients to receive a fixed amount for the error in return for agreeing not to sue. "One of the benefits would be to encourage hospitals and doctors to admit their mistakes, so that we can find out what's going wrong and fix it."

In order for the system to work, however, patients would need to understand what they are doing by waiving their right to sue. Also, compensations would have to be fair, reflecting the award a patient might receive for a similar injury under the current tort system. In return the patient and hospital save legal fees, delay, and the uncertainty of whether and how much damages would be awarded.

Mehlman says his passion for fairness goes back to his childhood. "My father owned a liquor store in a very bad area of Washington D.C., and I spent a lot of time there and saw how difficult life was for a lot of the black patrons. And I saw how it sort of twisted the attitudes of the people who worked in the store, including my father, and yet at the same time I was being raised by a succession of black housekeepers because my mother had died when I was an infant.

"So seeing this kind of contradiction made me very sensitive to concerns about fair treatment, and what makes people behave unfairly towards others, and to understanding that there are social factors that contribute to or undermine a fair and just society. And I try to instill that in my students. The last thing I say to them is. 'When in doubt, try to do the right thing.'"

–Case–

 

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