News Desk: Back Issues: Gawande on Fixing the Malpractice Mess : The New Yorker
Extracted Page: http://www.newyorker.com/online/blogs/newsdesk/2009/06/back-issues-gawande-on-fixing-the-malpractice-mess.htmlNews Desk: Back Issues: Gawande on Fixing the Malpractice Mess : The New Yorker
On his blog, Hendrik Hertzberg notes that President Obama, in a speech to the American Medical Association, name-checked Atul Gawande’s article on health-care costs in McAllen, Texas.
The Times reported this morning that Obama is now also working with the A.M.A. on one of their main priorities: reducing malpractice lawsuits, which they say has increased the cost of health care.
In the November 14, 2005, issue of the magazine, Gawande wrote about the rise of malpractice lawsuits—and pointed out that the increase in lawsuits and awards went to a very small subset of patients; “Ninety-eight percent of families that are hurt by medical errors don’t sue,” he wrote.
The courtroom-based approach to malpractice was both expensive and inefficient, so Gawande outlined a different approach:
There is an alternative approach, which was developed for people who have been injured by vaccines. Vaccines protect tens of millions of children, but every year one in ten thousand or so is harmed by side effects. Between 1980 and 1986, personal-injury lawyers filed damage claims valued at more than $3.5 billion against doctors and manufacturers. When they began to win, vaccine prices jumped and some manufacturers got out of the business. Vaccine stockpiles dwindled. Shortages appeared. So Congress stepped in. Vaccines now carry a seventy-five-cent surcharge (about fifteen per cent of total costs), which goes into a fund for children who are injured by them. The program does not waste effort trying to sort those who are injured through negligence from those who are injured through bad luck. An expert panel has enumerated the known injuries from vaccines, and, if you have one, the fund provides compensation for medical and other expenses. If you’re not satisfied, you can sue in court. But few have. Since 1988, the program has paid out a total of $1.5 billion to injured patients. Because these costs are predictable and evenly distributed, vaccine manufacturers have not only returned to the market but produced new vaccines, including ones against hepatitis and chicken pox. The program also makes the data on manufacturers public—whereas legal settlements in medical cases are virtually always sealed from view. The system has flaws, but it has helped far more people than the courts would have.
The central problem with any system remotely as fair and efficient as this one is that, applied more broadly, it would be overwhelmed with cases. Even if each doctor had just one injured and deserving patient a year (a highly optimistic assumption), complete compensation would exceed the cost of providing universal health coverage in America. To be practical, the system would have to have firm and perhaps arbitrary-seeming limits on eligibility as well as on compensation. New Zealand has settled for a system like this. It has offered compensation for medical injuries that are rare (occurring in less than one per cent of cases) and severe (resulting in death or prolonged disability). As with America’s vaccine fund, there is now no attempt to sort the victims of error from the victims of bad luck. For those who qualify, the program pays for lost income, medical needs, and, if there’s a permanent disability, an additional lump sum for the suffering endured. Payouts are made within nine months of filing. There are no mammoth, random windfalls, as there are in our system, but the public sees the amounts as reasonable, and there’s no clamor to send these cases back to the courts.
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