Wrong paradigm is at the heart of problem with medical liability system

LETTER — Posted Nov. 14, 2005

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Regarding "Global look at tort struggles offers glimpse of reform options" (Article, Oct. 10): AMA Past President Donald J. Palmisano, MD, was on point in telling Ottawa conference attendees that the medical liability system in the United States fails physicians and patients. Your article is indicative of the unworkable position in which the medical profession and providers of health care find themselves.

We are being held hostage by the inability of policy-making leadership to effectively articulate the fact that we and the public have been duped into continued acceptance of an outdated paradigmatic belief that underlies a half-century of failed efforts at tort reform and threatens both the quality of health care available to our citizens and the future of our profession.

Effective tort law, by definition and in practice, is based on adversarial ethical principles. Quality health care, by teaching and in delivery, is dependent upon the application of cooperative ethical principles. These antithetical ethical foundations, regardless of the often persuasive semantics employed to defend the continued application of tort law to patient compensation and error reduction, lie at the root of irreconcilable differences that will continue to diminish and ultimately destroy the ability of the medical profession to improve patient access to quality health care.

When we look at models from other nations to address patient compensation and patient safety, what we are most often seeing are not "reform" options. Rather, what is being observed are "replacement" alternatives.

The adversarial ethic upon which the medmal industry is built lies at the root of our increasingly dysfunctional and ultimately unsustainable situation and must be targeted for replacement. Court systems in other nations are most often based on inquisitorial rather than adversarial models. Therein, the cases are directed by knowledgeable jurists who rely on the testimony of independent authoritative experts at greatly reduced costs and markedly improved access.

Your article does a disservice to its readers by suggesting that no other nation's system "provides a perfect solution. And it's not practical to take one country's scheme and expect it to solve another country's problems."

Perfection is not the standard against which replacement alternatives are to be measured. Improvement is the goal.

Refusal to accept the proposition that other nations have been more effective in addressing the problems we confront belies a xenophobic arrogance that blinds us to opportunities for our patients.

Unless and until our leadership demonstrates the ability and willingness to confront the harsh light of paradigmatic change, we will remain unable to see beyond the restrictions of tort reform and our patients will be denied the opportunities of enhanced patient safety and fair compensation that attend tort replacement initiatives.

Dan F. Kopen, MD, Forty Fort, Pa.

Note: This item originally appeared at http://www.ama-assn.org/amednews/2005/11/14/edlt1114.htm.

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