The demise of medical malpractice screening panels and alternative solutions based on trust and honesty

Journal of Legal Medicine

Volumn 28, Issue 2, 2007, Pages 247-262

  Kaufman, Nicole L ^a  

^a SOUTHERN ILLINOIS UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CLINICAL PRACTICE; DOCTOR PATIENT RELATION; HEALTH CARE QUALITY; HEALTH INSURANCE; HEALTH SERVICE; HONESTY; HUMAN; JURISPRUDENCE; MALPRACTICE; MEDICAL ERROR; MEDICAL LIABILITY; PREVENTION AND CONTROL; REVIEW; SCREENING; TRUST;

ADVISORY COMMITTEES; HUMANS; MALPRACTICE; PHYSICIAN-PATIENT RELATIONS; RISK MANAGEMENT; TRUST; TRUTH DISCLOSURE; UNITED STATES;

EID: 34250333890     PISSN: 01947648     EISSN: 1521057X     Source Type: Journal    
DOI: 10.1080/01947640701357789     Document Type: Review

References (51)

1. "Frivolous" lawsuits are those lacking a legal basis or legal merit. BLACK'S LAW DICTIONARY 535 (7th ed. 2000);
2. see Jeffrey H. Birnbaum & John F. Harris, President's Proposed Remedy to Curb Medical Malpractice Lawsuits Stalls, WASH. POST, Apr. 3, 2005, at A05 (noting that President Bush lashed out against plaintiff's attorneys for filing "junk lawsuits" against health care providers).
3. E.g., BARRY R. FURROW ET AL., HEALTH LAW 345 (2d ed. 2000) (citing sources that analyze medical malpractice lawsuits as a tool of consumer rights).
4. See generally Eric Galton, Mediation of Medical Negligence Claims, 28 CAP. U.L. REV. 321 (2000) (expressing the idea that the goals of the civil justice system are inapposite to the goals of medicine);
5. see also UNITED STATES DEP'T OF HEALTH & HUMAN SERV., CONFRONTING THE NEW HEALTH CARE CRISIS: IMPROVING HEALTH CARE QUALITY AND LOWERING COSTS BY FIXING OUR MEDICAL LIABILITY SYSTEM 6-7 (July 24, 2002) ("The litigation system looks at the past, not the future, and focuses on the individual in an effort to assess blame rather than considering how improvements can be made in the system.").
6. See, e.g., MARSHALL B. KAPP, OUR HANDS ARE TIED: LEGAL TENSIONS AND MEDICAL ETHICS 7 (1998) (analyzing the phenomenon of physicians' "zero tolerance for personal legal risk"); Henry Eisenberg, A Doctor on Trial, N.Y. TIMES, July 20, 1986, at 26 (Dr. Eisenberg, an obstetrician/gynecologist practicing in New York, recounted his "painful" experience with malpractice litigation, stating "[s]ome mornings I dread getting out of bed to face another day with a lawyer looking over my shoulder"). As an aside, the title of Eisenberg's article emphasizes the perceived absurdity of a physician, a professional skilled in the art of healing, in the civil defendant's chair. The fear of civil litigation stems from its portrayal as the persecution of physicians rather than the compensation of patient injury, the court's assignment of blame, and the inherent uncertainty of the litigation process.
7. E.g., IDAHO CODE ANN. § 6-1001 (1998 & Supp. 2003) ("It is in the public interest to encourage non-litigation resolution of claims against physicians and hospitals by providing for pre-litigation screening of such claims by a hearing panel.").
8. Attempts at tort reform are well-documented and range from damage caps to medical tribunals, e.g., Michal Romano, Trial and Error: Medical Courts, Arbitration Systems Are Among the Ideas Gaining Attention as Answers to the Malpractice Liability Crisis, MOD. HEALTHCARE, Sept. 8, 2003, at 26 (noting the difficulty of creating a system that promotes efficient and consistent judicial rulings on medical malpractice).
9. Athough the author is cognizant of the range of ideas and intensity of the tort reform debate, the focus of this commentary is the pre-trial malpractice screening panel. The screening panel is of particular interest because of its relative longevity and constant modification by state legislatures to realize the stated objectives. Excluded from the present discussion are those states that require a certificate of merit prior to filing suit, create patient compensation funds, or mandate a pre-trial settlement conference.
10. See ALASKA STAT. § 09.55.536 (2004) (discretionary court-appointed three-person panel if parties do not agree to arbitration as provided in id. § 09.55.535, opinion as to liability is admissible at subsequent trial, if court determines that claim or defense is frivolous the costs of the expert advisory panel are charged to that party pursuant to id. § 09.55.536(g)); DEL. CODE ANN. tit. 18, §§ 6803-6814 (1999) (mandatory panel review and findings are prima facie evidence of negligence admissible at trial); HAW. REV. STAT. ANN. §§ 671-11 to 671-16.5 (LexisNexis 2002) (Medical Claim Conciliation Panel review and opinion regarding liability prerequisite to filing, then to arbitration panel that decides negligence and damages, proceed to trial if parties reject arbitration panel findings); IDAHO CODE ANN. §§ 6-1001 to 6-1011 (1998 & Supp. 2003) (informal non-binding hearing panel maintained by state board of medicine, labeled as "special civil grand jury," findings inadmissible); IND. CODE ANN. §§ 34-18-10-1 to 34-18-10-3, 34-18-8-4 to 34-18-8-6 & 34-18-10-23 (submission to one attorney, three physician panel unless damages claimed are less than $15,000 or both parties agree to waive requirement; finding admissible in subsequent trial); KAN. STAT. ANN. §§ 65-4901 to 65-4904 (1994 & Supp. 2004) (at party's request or on court's motion, panel reviews liability and opinion admissible at subsequent trial); LA. REV. STAT. ANN. §§ 40:1299:47 & 40:1299:57 (2001 & Supp. 2006) (mandatory review by panel on liability issue and admissible at subsequent trial, unless parties enter into arbitration agreement); ME. REV. STAT. ANN. tit. 24, §§ 2854-2858 (2000 & Supp. 2005) (mandatory submission to panel to determine liability and unanimous findings unfavorable to either claimant or respondent admissible); but see Smith v. Hawthorne, 892 A.2d 433, 439 (finding § 2858 unconstitutional as applied for the "asymmetrical admission of panel findings violated constitutional right to jury trial . . . [w]here there are findings favorable to both parties, the admission of only those findings favorable to one party distorts the jury's fact-finding role."); MASS. GEN. LAWS ANN. ch. 231, § 60B (West 2000) (medical tribunal composed of judge, physician, and attorney issues opinion regarding liability or "if plaintiff's case is merely an unfortunate medical result"; decision is admissible at subsequent trial, if opinion favored defendant and plaintiff proceeds to trial, plaintiff must post $6,000 bond that covers defendant's costs if verdict favors defendant); MICH. COMP. LAWS ANN. §§ 600.4901 to 600.4921 (West 2000) (mandatory submission to mediation panel, parties not required to attend, if claim or defense found frivolous and case proceeds to trial claimant must post $5,000 bond to cover opponent's costs pursuant to § 600.4915); MONT. CODE ANN. §§ 27-6-101 to 27-6-105 & 27-6-704 (2005) (if parties not under valid arbitration agreement, submission to medical-legal panel for opinion on liability, opinion is not binding nor admissible at subsequent trial); NEB. REV. STAT. §§ 44-2840 to 44-2847 (2004) (review by panel prior to filing, claimant can waive requirement, panel decides liability only and opinion is admissible at subsequent trial); N.M. STAT. §§ 41-5-14 to 41-5-20 (1996) (mandatory submission to medical review commission prior to filing, opinion as to liability is non-binding and inadmissible at subsequent trial); UTAH CODE ANN. §§ 78-14-12 to 78-14-16 (2002) (except for claims alleging dental malpractice, panel review is condition precedent to filing but may be waived or converted into a binding arbitration agreement, issues opinion as to liability that is non-binding and inadmissible at subsequent trial); VA. CODE ANN. §§
11. Catherine T. Struve, Doctors, the Adversary System, and Procedural Reform in Medical Liability Litigation, 72 FORDHAM L. REV. 943, 992-93 (2004) ("In jurisdictions where the panel's findings are admissible at trial, the parties will likely feel the need to engage in exhaustive discovery and a plenary presentation which will entail the costs and delay that panels are intended to prevent . . . . A plaintiff who must go through a panel proceeding in order to litigate her claim will, in effect, face the prospect of having to try her case twice.").
12. See generally MICHELLE M. MELLO, COUNCIL ON HEALTH, ECON. & POL'Y, MALPRACTICE LIABILITY PREVENTION: STRANGE BEDFELLOWS? 1-8, 19 (2003) ("Tort litigation and error reduction initiatives both aim to improve patient safety, but operate in ways that are counterproductive.").
13. INST. OF MED., TO ERR IS HUMAN: BUILDING A SAFER HEALTH SYSTEM 2 (1999) ("People still must be vigilant and held responsible for their actions. But where an error occurs, blaming an individual does little to make the system safer and prevent someone else from committing the same error.").
14. AM. MED. ASS'N, CODE OF MEDICAL ETHICS AND CURRENT OPINIONS, Op. 10.015, The Patient-Physician Relationship (2001) ("The relationship between patient and physician is based on trust and gives rise to physicians' ethical obligation to place patients' welfare above their own self-interest and above obligations to other groups, and to advocate for their patients' welfare.").
15. Press Release, Dep't of Health & Human Serv., HHS Calls for National Malpractice Litigation Reform to Protect Access to Quality of Health Care (July 24, 2002) (on file with author).
16. Id. But see TOM BAKER, THE MEDICAL MALPRACTICE MYTH 22-44 (2005).
17. CONFRONTING THE NEW HEALTH CARE CRISIS, supra note 3 (quoting A. Russell Localio et al., Relations Between Malpractice Claims and Adverse Events Due to Negligence: Results of the Harvard Medical Practice Study III, 325 NEW ENG. J. MED. 245 (1991)). This report issued by the Department of Health and Human Services in conjunction with Secretary Thompson's statement cited a statistic that only 1.53% of those injured by medical negligence ever filed a claim.
18. AM. TORT REFORM ASS'N, JUDICIAL HELLHOLES 2005, at 4 (2005).
19. Id. Another indicator of a "judicial hellhole" is a prevalence of class action filings.
20. NEIL VIDMAR, ILL. STATE BAR ASS'N, MEDICAL MALPRACTICE AND THE TORT SYSTEM IN ILLINOIS 52 (2005) (the average plaintiff award was $523,333, and the number of plaintiffs' verdicts in relation to cases filed represented a 35% win rate).
21. Id. at 58. Two of the four plaintiff verdicts found the hospital negligent in "slip and fall" cases, and a 2002 case involved a civil rights claim. Id. at 59-60.
22. Id. at 64.
23. See, e.g., Alec Shelby Bayer, Comment, Looking Beyond the Easy Fix and Delving into the Roots of the Real Medical Malpractice Crisis, 5 HOUS. J. HEALTH L. & POL'Y 111, 115 (2005) (attributing the medical malpractice insurance crisis to bad business and accounting practices necessitating higher premiums and fueling the tort reform movement).
24. FURROW ET AL., supra note 2, at 346-49.
25. See, e.g., Bayer, supra note 21, at 115; BAKER, supra note 14, at 45-67 (concluding that the true culprit of this malpractice "crisis" in relation to escalated premiums is the insurance industry, not the tort system).
26. See Randall R. Bovbjerg et al., Defensive Medicine and Tort Reform: New Evidence in an Old Bottle, 21 J. HEALTH POL. POL'Y & L. 267, 284 (1996) (urging readers to remember that the primary malpractice problem is malpractice itself, and that the first step to malpractice reform is to understand more about the nature of medical injury).
27. TO ERR IS HUMAN, supra note 11, at 1 (defining medical error as the failure of planned action to be completed as intended, or the use of a wrong plan to achieve the stated goal).
28. Id.
29. AM. MED. ASS'N, MEDICAL LIABILITY REFORM-NOW! 8 (June 14, 2005).
30. CODE OF MEDICAL ETHICS, supra note 12.
31. MEDICAL LIABILITY REFORM, supra note 27, at 3.
32. Id.
33. 23 U.S.C. § 1101 (1986).
34. E.g., FURROW ET AL., supra note 2, at 81.
35. 45 C.F.R. § 60.3 (2005).
36. Id. §§ 60.6 & 60.7.
37. UNITED STATES DEP'T OF HEALTH & HUMAN SERV., NATIONAL PRACTITIONER DATABANK: 2004 REPORT 6 (2004).
38. The Health Care Quality Improvement Act, 42 U.S.C. § 11101 (1986), created the National Practitioner Databank, but the databank was not fully functional until September of 1990 because of a need to secure funding and complete administrative formalities. See DAVID C. PATE, REGULATION OF HEALTH CARE PROFESSIONALS: A CASEBOOK APPROACH 178-80 (2002).
39. 2004 REPORT, supra note 35, at 7.
40. Struve, supra note 9, at 1015 (providing a thorough discussion of past malpractice crises that cultivated a distrust of the legal system by medical professionals, especially a distrust of the ability of those outside the field to comprehend medical evidence and practice).
41. See KENNETH ALLEN DE VILLE, MEDICAL MALPRACTICE IN NINETEENTH CENTURY AMERICA 224-30 (1990). DeVille identifies three cultural phenomena during the nineteenth century that placed physicians in the defendant seat with increasing frequency. First, the need for cohesive and peaceful community life receded and litigation, as a means for personal vindication, became the chosen forum for the redress of wrongs. Second, secularization minimized the belief of divine misfortune; that is, injuries or events below personal expectations were viewed as actionable in a court of law rather than a manifestation of divine will. Third, rapid advances in medical technology during this period raised patient expectations and demands. The blossoming lawyer population afforded improved access to the legal system. See also Alan Feigenbaum, Note, Special Juries Deterring Spurious Medical Malpractice Litigation in State Courts, 24 CARDOZO L. REV. 1361 (Mar. 2003) (noting that prior to the middle of the twentieth century, a personal physician was rarely considered someone to be brought before a court of law).
42. See Harold A. Sakayan, Arbitration and Screening Panels: Recent Experience and Trends, 17 FORUM 682 (1982). The screening panel was intended to weed out unjustified suits, encourage pretrial settlement of meritorious claims, decrease court congestion, and reduce the cost of medical care through lowered insurance premiums.
43. Such labeling of panels is deliberately misleading. See, e.g., MICH. COMP. LAWS ANN. §§ 600.4901 to 600.4921 (West 2000). Michigan's mediation panel does not require parties to attend. This requirement is a key aspect of true mediation, which is based on the parties shaping the resolution to their dispute through direct communication. Additionally, if the Michigan panel determines that the claim is frivolous and the plaintiff proceeds to trial, the plaintiff must post a $5,000 bond to cover the defendant's expenses in the event the trial outcome is unfavorable to the plaintiff; see also Dir. of State Courts, Medical Mediation Panels, at http://www.wicourts.gov/about/organization/ offices/mmp.htm (last visited Jan. 29, 2007) ("Although referred to in the legislation as 'mediation,' the work of panels is more accurately described as 'early neutral evaluation.' ").
44. Mediation is generally defined as an informal, confidential, and private process allowing parties to create a mutually acceptable resolution through direct communication, and aided by a third-party neutral to facilitate that discussion. E.g., Carol B. Liebman & Chris Stern Hyman, A Mediation Skills Model to Manage Disclosure of Errors and Adverse Events to Patients: A Quicker, Less Alienating Route to Closure than Malpractice Litigation, HEALTH AFFAIRS, July-Aug. 2004, at 22, 29.
45. See, e.g., William K. Kridelbaugh & Donald J. Palmisano, A 20-Year Experience with Malpractice Screening Panels, 82 BULL. AM. COLL. SURGEONS 21 (May 1997), available at http://www.facs.org/ahp/proliab/malpanel.html (last visited Jan. 29, 2007) ("Because the plaintiff must present his or her case to a panel before filing in court, there tends to be less adverse publicity for physicians involved in malpractice accusations. The public press is rarely aware of medical review panel cases. . . . Finally, the creation of a panel system, its continued operation, and the evaluation of its effectiveness promotes a continuing dialogue between physicians and lawyers that is beneficial to interprofessional relations.").
46. See Jean A. Macciaroli, Medical Malpractice Screening Panels: Proposed Model Legislation to Cure Judicial Ills, 58 GEO. WASH. L. REV. 181 (1990).
47. See id. at 188.
48. MASS. GEN. LAWS ANN. ch. 231, § 60B (West 2000).
49. AM. MED. ASS'N, MEDICAL LIABILITY CRISIS MAP, Jan. 2007, available at http://www.ama-assn.org/ama/noindex/category/11871.html. The American Medical Association lists an additional 25 states on the verge of a medical liability crisis, and seven of those states have screening panels: Alaska; Maine; Michigan; Montana; Nebraska; Louisiana; and Utah.
50. AM. MED. ASS'N, MEDICAL LIABILITY CRISIS MAP: MASSACHUSETTS MEDICAL LIABILITY CRISIS STATE BACKGROUNDER (2005).
51. Id.