Medical Malpractice Alternative Dispute Resolution Systems: Can they work?

Medical Malpractice Alternative Dispute Resolution Systems: Can they work?


Hello, and welcome to Healthcare Matters,
the internet television program that explores the intersection of Medicine and the Law.
I’m your host Mike Matray and today’s guest is Dr. Richard Anderson. Dr. Anderson is chairman
and chief executive officer of The Doctors Company, the nation’s largest physician-owned
medical malpractice insurer. Welcome to the program Dr. Anderson. Thank you very much. Nice to be here. In the healthcare industry’s quest to reduce
the overall cost of medical liability system, experts have recommended a number of alternative
dispute resolution structures. They range from mediation and arbitration that specialized
health courts. How do you feel about this alternative dispute resolution ideas and do
you any endorse any of them? Yeah, again, very interesting question. First
of all, I will say, that we have the worst…it’s like what Winston Churchill said about democracy.
“It’s the worst of all political systems except for all others.” And I kind of feel that is
what we have now. It’s clear that our system of medical legal jurisprudence is broken.
We have infinitely too many suits. More than 80% of all medical malpractices claims close
with no indemnity payment whatsoever, zero indemnity payment. Meaning that for practical
purposes, you can use the word frivolous, but if you don’t want to use the word frivolous
then you can use the word that they were futile. In other words, the doctor and the patient
went through the cost, and frustration, and angst, and anger, and emotional turmoil of
three to four years of litigation and ended up zero. No money changes hands. Complete
waste. So if anything that would reduce the onslaught of unnecessary litigation would
be a major reform. In terms of which reforms are most likely
to be effective, it’s a hard question because the devil’s in the details. Almost all of
the reforms that have been proposed and were mentioned are well-intentioned. And some of
them could work quite well. Mediation can work well just because it gets both sides
talking. Arbitration can be designed as a compulsory program can also fast track litigation,
take some of the emotion out of the process, and reduce the length of it, reduce some of
the frictional cause. But again, the devil is in the details. Who’s the arbitrator going
to be? Is there going to be a right of appeal? In some states, for example, that have arbitration,
the physician may win in arbitration and yet if the patient decides that they don’t like
the outcome, they can go to court anyway. Well, then the arbitration’s been a complete
and utter waste of time. And so really the devil is in the detail. The other alternative that you mentioned,
healthcare courts is certainly an attractive alternative. And again, you’d have to design
a complete system. But the notion of having real experts whose primary allegiance was
to truth rather than to the side which is paying their hundreds of dollars an hour fees,
and unbiased and unemotional decision making and begin to separate medical standards of
care from medical legal standards of care. And take some out of the emotion of out of
the medical malpractice litigation because certainly emotion, especially anger, is a
core element of medical malpractice litigation. And one other major point, if you really did
have true expert medical courts, you could presumably establish pretty clear-cut precedents.
And if you have clear-cut precedents, then every physician could, at least, feel that
he or she understood what the rules are. Right now, the way our systems works, we can talk
about the standard of care, we think we know the standards of care is. But, at the end
of the day, in every single medical malpractice claim, it’s the judge or the jury that finally
makes their own decision on what they think the medical standard of care is or, even worse,
it’s what they think the medical care should be. I say even worse because they are applying
retroactively. So yes, there is a lot that can be done to reform medical malpractice
but it’s a heavy load. Dr. Anderson, thank you for taking the time
to visit with us today. Well, thank you very much. It was a great
pleasure. Thank you. You live in California, a state that instituted
the Medical Injury Compensation Reform Act, or MICRA, in 1975. It’s considered the gold
standard of medical liability tort reforms. As a result of MICRA, California has some
of the nation’s most affordable medical malpractice insurance premiums, can you walk us through
MICRA and what are its most effective provisions?

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