Don’t you just hate “on the one hand, on the other hand” columnists who think that reasonable folks can differ?
On medical malpractice reform, this columnist is guilty as charged. I’ve been submerged in the muck of medical malpractice “reform” on almost all “sides,” including a stint on the staff of former Gov. John Rowland, who attempted unsuccessfully to craft a malpractice compromise.
The insurers, the trial lawyers, the doctors — they all have credible points to make — which is one reason reforming the mess is such a complicated task.
Sure, sure, large, unpredictable verdicts raise the cost of health care and make doctors somewhat mentally ill purveyors of “defensive medicine” — although the research that attempts to quantify such things is mediocre.
To be sure, a trial lawyer sniffing around a sloppy hospital procedure is often a better safety wake-up call than a stern memo from a hospital administrator about the importance of washing your hands.
And yes, a “jury of your peers” may or may not be an appropriate venue by which to evaluate the complexities of whether a particular doctor was a genius or a moron.
There are few nuances that haven’t been explored when it comes to reforming medical malpractice law. My personal favorite on the list of credible ideas: the “pain and suffering” award, on top of actual damages, should be a healthy percentage of actual damages, as opposed to an emotional, unclear, unpredictable decision by jurors who are tired and want to go home.
There is a new medical mal quibble on the margin of the reform movement playing out in, among other places, Connecticut. As hospital and docs point out, government and shadowy commissions and task forces and greedy insurers and dreamy academics are generating quite specific practice guidelines for what to do and how to do it — aimed at cranky, independent doctors.
The question that arises: If the doctor, if the hospital, performs exactly in the fashion that God and/or bureaucrats intended, and something goes wrong, is it still “malpractice,” — or is it “best practice?”
In fact, the pharmaceutical industry has been raising this issue for awhile, arguing that if the FDA has blessed a particular drug as safe and effective, and something goes wrong, is the drug company liable or was the FDA stupid — or is it something in between?
The issue for doctors has popped up at the General Assembly during the legislative mucking around with the state’s “SustiNet” insurance package, a sort of constipated, state-based ObamaCare creature that in part attempts to be fairly bossy when it comes to clinical practice guideline by doctors, whose job in part is apparently to care for the poor and the confused, without busting the bank.
A tossed bone to the docs — a malpractice shield if you do what SustiNet tells you to do — is, as of this writing, still being quarreled over.
The issue is more interesting than the usual quarrels over malpractice reform. In fact, the subtext here is that the poor folks have to accept the fact that “free” or discounted medical care is going to come with strings attached. You might not get the same lavish attention as the rich folks, with great insurance and free-spending, “defensive medicine,” doctors.
That’s not the way the argument is crafted, of course. We’re squeamish about notions of “mediocre” medicine for the poor folks. The practical question: Is SustiNet sufficiently confident of its limitations and restrictions and guidelines to give the docs a free ride on medical malpractice?
Nothing easy here. Take an aspirin and call me in the morning.
Laurence D. Cohen is a freelance writer.
