Edward P. Richards
Director, Program in Law, Science, and Public Health
Harvey A. Peltier Professor of Law
Louisiana State University richards@lsu.edu
http://biotech.law.lsu.edu

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What is broken?
Does substituting an administrative compensation scheme address the real problems?

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Medical malpractice is not a significant % of the total health care budget
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The problem is that it is not evenly distributed over the budget
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Some docs get what they deserve - neurosurgeons and bad backs
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Some pay unfair rates because of others in the specialty
The cost is also overly cyclical because of flaws in the insurance market

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Current system provides no compensation for most injuries under $100,000 and none under
$50,000
In some states plaintiffs with the right facts get a windfall
In some states plaintiffs with terrible injuries do not get adequate compensation
Juries do not do a good job of technical determinations or polycentric problems

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The majority of the dollars in the med mal system go to lawyers, not injured persons
The system can be fast with a settlement, but can take years or decades if there are is a trial with contested legal issues
These delays hurt claimants and exacerbate the insurance cycle

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Tort reform has been limited by open courts provisions in some states
Tort reform is mostly one-sided
Administrative compensation is more balanced

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Current system does not link fault determinations made for compensation to discipline or reeducation to improve quality
Random nature of claims undermines any signal that malpractice claims might send to improve quality
Plaintiffs and defendants argue unworkable and sometimes even dangerous standards of practice to win their cases

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Agencies do a better job of technical determinations
Agencies do a better job of dealing with small claims
Agencies can be more efficient in getting dollars to claimants
Agencies do a better job with polycentric problems
In all cases, better does not perfect, just better than litigation

Administrative compensation models are used in many other areas, but will these map effectively to medical malpractice?

Baseline Condition of Patients

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In other comp systems claimants are basically healthy so it is easy to know that the compensable event caused the injury
In disability systems, where there are confounding injuries and illnesses, the system compensates for the entire injury so there is no need to sort out causation
In either case there is no need to determine fault, only injury

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Many people are already in bad shape
Great diversity of preexisting conditions
You cannot compensate everyone who is injured as you do in worker's comp because most of the injuries are not related to medical malpractice
More like some issues in occupational diseases, but those only require causation analysis, not fault

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Comp schedules depend on determining compensation against a baseline of a healthy worker
Not so easy when you have to deal with already sick people
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Compensation is very different for a young otherwise healthy person and someone with a serious or fatal underlying condition
Must be individualized, which undermines scheduling

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Cannot be like other comp system because we only compensation a small % of the injured people
Must determine fault
Fault requires standards of care, but not general standards, very specific standards for each case
Some can be done with guidelines, but these are very blunt tools
Justice demands you act when you find fault

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Even with fault, you still do not have causation in many cases
Even with causation, it is seldom the full cause of the patient's condition
Occupational diseases do not have a fault determination but do require some sorting out of causation.

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Compensation alone has no deterrence value
This is the biggest problem with the current system - no linkage with discipline or at least reeducation
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Not unreasonable given the unreliable nature of judicial determination and settlements
Discipline would be a big selling point to those opposed to limiting litigation

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Do we keep the same model that is based on collecting from docs?
Do we move to a general funding mechanism that is more fairly spread over the system?
Does it come with salary caps for docs to make up for spreading it out?

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Key distinction between courts and adlaw is the decisionmaker
Must be expert and must be inquisitorial to get at the truth
A devoted panel might be one solution, but getting expertise is hard
Could draw from the community as is done for the
Louisiana review panels
Cannot be done in the courts, they have no ability in the area and it would corrupt their role in other cases

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Who initiates the case?
Does the agency prepare the cases?
Do the parties prepare the full case or only the response to the agency?

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The real problem is lack of comprehensive national health insurance and disability coverage
That would remove the distributive justice problem of sorting out which injured patients get compensation and which are out of luck
Administrative process could concentrate on quality of care

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Louisiana caps all non-medical damages at
$500,000 and moves future medical and rehabilitation out of the courts and into a full adlaw process
No attorney's fees on future medical costs
Can litigate necessity
Could use this and arbitration as a hybrid approach