According to data published in the New England Journal of Medicine in 2011, nearly 15 percent of orthopaedic surgeons are likely to face a medical liability claim each year, and the cumulative likelihood of an orthopaedic surgeon facing such a claim by the age of 45 is 88 percent. In addition to statistics like this that suggest a flawed system, the tort-based medical malpractice system has not proven to deter substandard care or improve patient safety–and neither has the tort-reform approach to improving the existing liability environment.
Alternatives to tort reform may provide a ray of hope. A recent JAMA article summarized what it calls “a welcome influx of creative initiatives that transcend traditional reforms.” The Mello et al. article evaluates nontraditional approaches that were or are being tested during demonstration projects supported by the Agency for Healthcare Research and Quality (ARHQ). The article devotes much of its space to the so-called communication-and-resolution approach pioneered by the Lexington, Kentucky VA hospital and the University of Michigan Health System. The worth-reading article also covers mandatory presuit notification and apology laws, judge-directed negotiation programs, clinical guideline-based safe-harbor laws, and administrative compensation systems.
In a recent AAOS Now article citing possible barriers to widespread implementation of these and other no-fault approaches to medical liability reform, David Sohn, MD, JD, identifies the trial lawyer lobby as probably the biggest political hurdle that needs to be overcome.