Drop current medical tort system in favor of arbitration boards

LETTER — Posted Feb. 16, 2004

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Recently I spent two weeks in a courtroom, and the two months prior in preparation for that appearance. Going to the courthouse every day, I was comforted, in an uncomfortable way, at the sight of other physicians. I nervously joked that it was like attending grand rounds. They, too, were there for malpractice cases.

After an emotionally arduous two weeks, the jury returned a verdict in my favor. The system seemed to work in the end, but I submit that it failed miserably for letting my case go as far as it did.

What every doctor knows, legislators refuse to admit. We physicians learn very early in our practical training that the No. 2 priority, second only to "above all do no harm," is "cover your backside" (CYA, for short).

The cost of defensive medicine has been estimated at $50 billion a year. Still, legislators listen much more closely to the self-proclaimed public advocates -- personal injury attorneys.

If being sued was used to judge a doctor's proficiency, there would be few doctors, if any, or hospitals to which we could refer. Daily I make referrals to doctors who have been sued and even some who have lost multimillion-dollar malpractice cases. These are doctors, as myself, who while in medical school never dreamed that depositions, subpoenas, courtrooms and bills of particulars would enter into their discussions as much as diagnostics, treatment plans and bedside manner.

Any sincere attempt at saving our health care system must include a revamping of our present approach to malpractice. I propose the creation of an arbitration board of doctors, judges, legislators and laypersons to hear cases of suspected malpractice. The nonphysician members of the board would be required to undergo basic training in medical terminology, procedure and treatment. The board would be elected or appointed within a congressional district or county.

Attorneys representing a possible victim of malpractice would bring the case to the board. After careful review of the evidence, if the board deems malpractice was committed, then the person would receive 100% of the determined allocation for damages. Health insurance companies would be mandated to contribute a portion of every person's health care premium into this malpractice fund, from which the award would be drawn. The doctor who committed malpractice would be referred to the regional medical society for further review and possible referral to the state medical board.

We will all lose if malpractice reform is not addressed. Our access to health care will be greatly limited and the cost will be unaffordable.

Charles F. Glassman, MD, Pomona, N.Y.

Note: This item originally appeared at http://www.ama-assn.org/amednews/2004/02/16/edlt0216.htm.

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