Is It Time for Malpractice Reform?

Tort reform isn't the only way to fix the malpractice problem

Joanne Kenen
American Prospect
November 20, 2009

Year after year, Republicans try to pass legislation that would limit medical malpractice awards. Fix the tort system, they argue, and we fix rising health-care costs. And year after year, Democrats resist placing arbitrary caps on awards to people who may have suffered from an egregious medical error. The fight plays out like a predictable old Western -- good guys versus bad guys. Depending on your politics, the villain is either the greedy doctor or the greedy trial lawyer.

Health reform invites a fresh look at malpractice. The Republican tort-reform agenda hasn't magically fixed what ails American health care in states that have tried it. But progressives can test new models of medical malpractice reform because -- done right -- they may lead to a more consistent, more timely, and more equitable approach to compensating people who have been harmed. As Ezekiel Emanuel, a bioethicist and White House adviser on health policy, writes in his book Healthcare, Guaranteed:

There's little question that the system is broken ... Numerous studies have shown that the majority of patients who suffer a medical error are not compensated, while a select few win outsized awards. And on average, patients must wait nearly five years to resolve claims and receive payments from a malpractice case -- six if the case is related to the delivery of a baby.

(More here.)