by Jeff Bendix

The country's current medical malpractice crisis is the result of an unfair system, and reforms being discussed in Congress and state legislatures are not likely to make malpractice laws more just, according to a Case Western Reserve University law professor.

In a recent study, Max Mehlman, the Arthur E. Petersilge Professor at the Case School of Law, professor of biomedical ethics and director of the Case Law-Medicine Center, finds that current medical malpractice laws are inconsistent, impose disproportionate costs on doctors who provide high-risk care and their patients, provide for erratic punishment and use rules that are not acceptable to all the parties involved.

In the study, Mehlman first defined what fairness means in the context of a medical malpractice system by examining 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," Mehlman said. "And I was surprised at my conclusion, which is how unfair the current system really is."

Among the problems with current malpractice laws, according to Mehlman, 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," Mehlman said. "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."

In his research, Mehlman also evaluates some of the proposals for overhauling malpractice laws. He dismisses the idea, recently floated by President Bush and Republicans in Congress and enacted by the Ohio General Assembly, to cap damage awards at $250,000.

"There's no way to defend that idea," he said. "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 unjust, according to Mehlman, 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," he said. "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 said 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 for 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," Mehlman said.

In order for the system to work, however, patients would need to understand what they are doing by waiving their right to sue, according to the professor. 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, he said.

Return to the online edition of the 8-21-03 Campus News.

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