Medical Professional Liability and the Delivery of Obstetrical Care Volume II, An Interdisciplinary Review (1989) / Chapter Skim
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A Fault-Based Administrative Alternative for Resolving Medical Malpractice Claims: The AMA-Specialty Society Medical Liability Project's Proposal and Its Relevance to the Crisis in Obstetrics
A Fault-Based Administrative Alternative for Resolving Medical Malpractice Claims: The AMA-Specialty Society Medical Liability Project's Proposal and Its Relevance to the Crisis in Obstetrics
Pages 136-160
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From page 136... ...
The authors were consultants to the AMA-Specialty Society Medical Liability Project in designing the administrative system discussed in this article. The views expressed by the authors do not necessarily reflect the views of the project itself.
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From page 137... ...
it took three or more years to close the claim. _ ~ _ ~ , THE NEED FOR DRAMATIC CHANGE The drastic situation in the field of obstetrics today illustrates how the tort reforms of the late 1970s have failed to remedy defects in the civil justice system for resolving medical liability disputes.
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From page 139... ...
Moreover, no-fault proposals do nothing to address one of the two major goals of all tort law, namely, deterrence. Thus, the Liability Project did not pursue a no-fault plan, including the "designated compensable events" scheme,28 because of concern that either the costs of such a system would be excessive29 or that it would be necessary to apply strictly scheduled benefits (much like the Social Security disability
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From page 140... ...
\ Settlement Settlement FIGURE 1. A~-Specialty Society Medical Liability Project Administrative Dispute Resolution System system or the New Zealand no-fault tort system30)
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From page 141... ...
Contract proposals ignore the need to improve the skills of some practitioners as an integral part of any plan to ameliorate the malpractice crisis, relying instead on the market to persuade physicians that they should maintain an appropriate level of skill.35 Although the no-fault concept could be integrated into a comprehensive agency that also has enhanced disciplinary powers, no-fault proposals to date have focused on compensation without making any provisions for improving physician skills as a way of decreasing the incidence of medical injury. Morover, a no-fault system is explicitly not designed to uncover substandard medical practices and, therefore, will not provide information about physician practices that will enhance the disciplinary function as effectively as a fault-based system.
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From page 142... ...
This seven-member board will appoint the other key personnel in the agency, including hearing examiners, attorneys, claims reviewers, and investigators. The Claims Resolution Process The essence of the proposal is that claims of medical malpractice will be removed from the civil justice system and placed in a specialized administrative agency for expert and efficient resolution.
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From page 143... ...
The patient may pursue such a dismissed claim by retaining a private attorney to resubmit the claim with an affidavit from an expert health care provider in the relevant field attesting that, in the expert's professional opinion, the patient's injury was, to a reasonable degree of medical certainty, caused by inadequate health care. Hearing After a claim passes out of the initial claims review stage, it is assigned to a hearing examiner.
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From page 144... ...
The hearing examiner may question witnesses directly and, if necessary, call independent experts for assistance. Unlike a civil trial judge, the hearing examiner will be experienced in adjudicating medical negligence claims, which will be the only kind of claims heard.
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From page 145... ...
Standard of Care The standard of care that is applied in most states is based on the custom in the local region.4i The AMA-Specialty Society Project proposes that the Medical Practices Review Board apply a standard that focuses on whether the challenged actions fall within a range of reasonableness, to be determined by reference to the standards of a prudent and competent practitioner in the same or similar circumstances. The board will be required to consider a variety of factors in making this determination, including the expertise of the health care provider, the
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From page 146... ...
Informed Consent In most states the adequacy of disclosure for informed consent is determined from the perspective of the physician or other health care provider.44 The AMA-Specialty Society proposal adopts the current minority rule, which evaluates the adequacy of disclosure from the perspective of the reasonable patient. The Project believes that the reasonable patient standard is fairer to patients, that it will facilitate greater communication between the patient and the health care provider, and
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From page 147... ...
The proposed modifications of the damages rules are designed to bring greater predictability of awards, greater rationality in the calculation of noneconomic damages, and more equitable treatment of similarly situated patients. Greater consistency in damage awards is also expected to lead to early settlement of meritorious claims.45 Physician Monitoring and Quality Assurance In addition to restructuring the dispute resolution process for liability claims, the AMA-Specialty Society proposal calls for the assignment of increased powers to the Medical Practices Review Board in the area of credentialing and disciplining physicians.46 To ensure a more comprehensive review of physician practices, the proposal includes several kinds of reporting requirements.
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From page 148... ...
Investigations will be initiated on the basis of adverse reports received by the clearinghouse or complaints about physician performance filed by any member of the public, including board members, hearing examiners who review malpractice claims, and other health care professionals. If there is reason to believe that the physician poses a threat to patient health, the agency will conduct an on-site review and audit of that physician's practices.
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From page 149... ...
All of the foregoing physician monitoring and quality assurance requirements and mechanisms are designed to improve the quality of medical care and to reduce medical negligence. Thus, the Project's proposal is a comprehensive response to the medical liability problem.
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From page 150... ...
Moreover, there may be some lowering of awards because of the requirement that the hearing examiner must identify each specific element of economic damage and explain its basis.
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From page 151... ...
Therefore, in the present jury system such cases are often settled even when causation is highly questionable. The clarity of the proposed causation rule in the AMA-Specialty Society's system and its application by a knowledgeable hearing examiner can reasonably be expected to lead to the dismissal of some cases in which liability is currently found due to an erroneous shifting of the burden of proof to the obstetrician.
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From page 152... ...
This goal ofthe AMA-Specialty Society proposal is all too often overlooked in discussions of the problems in the medical liability system. The proposed extensive enhancement of physician monitoring activities is designed to lead—and we believe will lead to higher quality care and fewer instances of medical negligence in obstetrics, as well as in other fields of medicine.
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From page 153... ...
As mentioned earlier, the obvious crisis in obstetrics has led two states, Virginia and Florida, to adopt tort reform proposals directed solely toward the problem of neurologically impaired infants.64 This situation-specific response raises questions about the suitability of the AMA-Specialty Society proposal as applied to obstetrics or to any other discrete area of medicine. Through their work with states interested in exploring creative ways of dealing with the crisis in medical liability, Project members have come to recognize that there may be a variety of ways to incorporate aspects of the Project's proposal into an existing state system.
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From page 154... ...
Although there is no guarantee that the Project's system of claim adjudication and monitoring of physician practices will ameliorate the current crisis in obstetrics, it deserves serious consideration by scholars, legislators, and all persons concerned with ensuring fairer, swifter, and more efficient resolution of medical negligence claims. In sum the AMA-Specialty Society Medical Liability Project has designed its system with primary attention to fairness fairness to patients, to physicians, and to the public.
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From page 155... ...
1986. Report of the Twentieth Century Fund Task Force on Medical Malpractice Insurance.
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From page 156... ...
After studying the explosive increase in the number and size of tort awards, particularly medical malpractice awards, the Working Group concluded that the "excesses of the tort system" have contributed significantly to the crisis in insurance availability and affordability. In response they called for a series of tort reforms, including the use of noncourt dispute resolution alternatives, to '`bring a greater degree of rationality and predictability to tort law....
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From page 157... ...
23. As discussed earlier, substantial numbers of obstetrician-gynecologists and family practitioners are discontinuing obstetrics practice in response to the rapidly escalating size of obstetrical malpractice awards and the concomitant rise in malpractice insurance premiums.
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From page 158... ...
48. An impaired physician program is a medically directed treatment program for physicians impaired by alcoholism, alcohol abuse, drug abuse, or mental illness.
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From page 159... ...
("The stakes are particularly high in perinatal care, since the brain damage or other permanent, incapacitating defects which can result from delivery mishaps make the long-term care of the injured infant an extremely expensive proposition.") American Medical Association—Special Task Force on Professional Liability and Insurance.
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From page 160... ...
65. See, for example, the recent data suggesting that it may be difficult to distinguish infant brain damage caused by improper obstetrical care from infant brain damage caused by maternal use of cocaine (Brody, J
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