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Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
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OCR for page 18
Liability
William M. Sage
I view the liability portion of the proposal as a major breakthrough.
The major breakthrough, however, is not the detail of the proposal. The
details actually all build on well-established concepts in the academic and
policy literature or programs that have been tested in particular organiza-
tions or in other countries. The breakthrough is that liability is included
here as part of an integrated set of health system improvements. In my
view, there is an unfortunate tendency to divorce liability considerations
from the rest of the health care system. We tend to treat them as a special
case that really does not relate to all the things that, in fact, we know they
do, including the other ways people access health care, the providers who
must make that health care available, and how it must be paid for.
I think one thing that has contributed to this unfortunate tendency
toward what I like to call liability exceptionalism is that in the political
world, we continue to debate proposals that are malpractice liabilities first
considered and adopted in some jurisdictions back in 1975. Because liabil-
ity insurance crises happen periodically, we have a tendency to think that
a proposal from 1975 would be appropriate for the health care system of
2003. My view is that this is absurd, and I think the great breakthrough
here is that we are talking about a liability proposal that is integrated with
health system reform and health system improvement.
There are several goals associated with a liability proposal. I believe
we are in the midst of a true, liability insurance crisis and that concerns
the committee greatly. Therefore, aspects of this proposal are intended to
bring much greater certainty and, therefore, financial predictability to ei-
ther the coverage costs or doctors and for hospitals.
18
OCR for page 19
LIABILITY
19
One of the great breakthroughs, since 1975, is that we understand
patient safety much better. This is a set of proposals designed to induce
health care providers to do a better job with patient safety and to do it in
ways that are more sheltered from the types of liability risks currently
discouraging health care providers from engaging in cooperative patient
safety improvement activities.
An important thing that patients deserve, if they are injured, is a
prompt payer and certain level of compensation, something the tort sys-
tem has not typically provided and these proposals are designed to incor-
porate that.
Another issue is that these proposals are designed to involve patients
in their own care, in patient safety improvements generally, and to give
patients good communication when and if errors do occur. Those are the
conceptual landmarks for the proposal.
We have outlined two options. One we call a provider-based early
payment and the other we call statewide administrative resolution. The
difference is that option one takes the approach that there is a better
mousetrap here. There is a way of organizing health care services that is
better in terms of patient safety and patient involvement that can offer
compensation to injured patients in a way that is financially predictable
for them.
But the committee wanted to recognize the better mousetrap in a vol-
untary rather than a mandatory fashion. So, the notion of option one is to
provide incentives for these organizations to step forward, change the
way they compensate injury, connect the things they can do to improve
patient safety to public systems of accountability, and in return get tort
immunity and significant changes to the current system of resolving pa-
tient injury disputes.
Option two is a statewide administrative scheme, which looks to the
entire provider community within a state to engage in both the prompt
compensation of avoidable injuries and the patient safety improvement
activity and to do that on an all-inclusive, mandatory basis.
Both of these proposals have certain features in common. There is a
public infrastructure involved in terms of creating definitions of avoid-
able events, assigning values for compensation in addition to economic
harm, and compensation for noneconomic harm and values, prospectively
according to some deliberative process.
In my view, one of the really important things here is that this
offers an opportunity for the types of social conversations that we have
been struggling to have in the United States for decades over what people
really expect to get out of the health care system and what monetary
amounts they place on those benefits.
In option one, the provider-based early payment system, we are usu-
OCR for page 20
20
FOSTERING RAPID ADVANCES IN HEALTH CARE
ally talking about a hospital organization. We have provided incentives
for the hospital to bring physicians who are associated with that hospital
within the ambit of reliability protection and we would expect them to
build on proposals currently available that offer early offers of settlement.
We would also expect that the hospitals would identify avoidable inju-
ries, communicate those facts to patients, take steps to keep them from
happening again, and to promptly pay the patients the amounts required
according to the predetermined schedules. In exchange for that, the orga-
nizations would enjoy freedom from a lawsuit.
As a financial inducement, we focused on the federal government con-
tributing to the excess coverage that these institutional health care pro-
viders currently face. One of the facts of the current liability crisis is that
the excess layer of coverage is extremely expensive for a variety of rea-
sons, many of which are related to the reinsurance markets. But the no-
tion here is that organizations that can do things right and really want to
do things right would come forward and take advantage on an organiza-
tion-by-organization basis of this proposal.
Option two, the statewide administrative resolution system, is an ad-
ministrative adjudication system similar to a worker's compensation or
other no-fault system on a statewide basis. This option uses definitions of
avoidable injury and compensation amounts that have been developed
through public processes with the federal government contributing to the
start-up costs for that system.
Representative terms from entire chapter:
statewide administrative
