Program Structure
Compensation programs such as the BRNICP in Florida and Virginia would replace traditional tort law. In this system, physicians would pay annually into a compensation fund (as do the physicians in Virginia and Florida), with amounts prorated to liability risk based on practice specialty. A patient harmed by a claimed medical injury that was allegedly caused by the proximate treatment rendered, would apply to the patient compensation system via a designated patient advocate. The advocate would initiate the claim process on behalf of the patient, after which the claim would be reviewed by a panel of medical experts in the appropriate field. If the panel finds the injury was preventable or avoidable, the case would then proceed to a compensation committee to render payment to the injured individual.
This compensation model not only eliminates the need for legal counsel for the patient, but also the need for medical malpractice liability insurance and defense counsel for the physician. Unlike traditional tort law, this alternate process encourages a system of transparency that supports appropriate disclosure of medical error rather than delaying late discovery of error and increased angst both for the patient and the physician.
Potential Benefits
One would anticipate that an alternate compensation model such as the BRNCIP that eliminates the fear of a lawsuit (ie, if patients no longer sued physicians for medical malpractice) would have a significant impact on defensive medicine and its associated costs. A study conducted by Emory University concluded that as much as $7 billion in the state of Georgia could be saved each year if such a program was enacted.13 In addition to the financial benefits, the care of all patients would improve through increased efficiency and better appropriation of finite resources. Moreover, patients harmed in a medical mishap would have a more direct, expedited, and less expensive mechanism of compensation compared to traditional tort systems.
The alternate compensation model would also benefit patients by negating the need for legal counsel. In the current tort system, many cases go unaddressed either because the patient does not have the means to hire counsel or the case seems too inconsequential for a lawyer to accept it. The compensation system would improve access for patients with valid claims, from egregious high impact errors to the lower impact errors, which are still significant.
There are also public health benefits to the alternate compensation model, including advances in patient safety as a result of the transparency of medical error and addressing medical mishaps in a timelier manner, providing an opportunity to improve knowledge and system gaps closer to real-time events. No longer would a patient have to forge an adversarial offensive on a physician. The panel of experts, who becomes the peer of the physician, can fairly assess the conditions of the case and bring forth an impartial recommendation to either reimburse or not reimburse the patient.
By eliminating the punitive nature of tort law upon the physician, and because this system compensates through a state-based compensation program, there is no indelible report made naming the physician to the National Practitioner Data Bank. Further, if a provider is identified as a significant risk to the public, the panel of medical experts can report that physician to the state licensing board immediately, which would prove more effective and efficient than the traditional method of data collection and referral currently in place in most states.
Challenges
Challenges to these bills include resistance from those who may be adversely affected by such legislation—mainly medical malpractice trial lawyers (both plaintiff and defendant) and medical malpractice insurance companies.
Conclusion
In consideration of innovative solutions to medical malpractice reform, the efforts in the states of Georgia and Florida clearly think outside the box. Neither of these proposed solutions is currently operational, but certainly if they become state statutes, they will create a very interesting environment to observe while the effects of such systems play out. The operations of the birth-related injury funds have been successful in states that have already implemented such programs. In the meantime, pending such changes in policy and legislation, EPs can mitigate malpractice risk by maintaining board certification and specialty training requirements, and by employing the following:
Follow the basic principles for every patient. Vital signs are vital for a reason, and all abnormal data must be accounted for;
Maintain open communication with patients—a paramount component in reducing the risk of a malpractice allegation;
Ensure that all members of the care team engender an environment that is focused on patient safety, including open communication with nursing staff and technical support;