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Two articles in the November 26th issue of the Journal of the American Medical Association discuss the current medical liability climate, the need for reform, and some of the benefits of the Communication Resolution Program (CRP) approach.

The Medical Liability Climate and Prospects for Reform

Medical Malpractice Reform:  When Is It About Money? Why Is It About Time?

The first article entitled ”The Medical Liability Climate and Prospects for Reform” by Michelle Mello, David Studdert and Allen Kachlia reviews national trends in frequency and costs of medical liability claims and discusses the potential advantages of  “creative initiatives” including CRPs, pre-suit notification, and apology laws, which are components of our CARe program in Massachusetts.

Their analysis of multiple sources of national data demonstrate a nearly 50% reduction in the rate of paid claims against physicians from 2002 through 2013 and a slight decrease in the average median payment since 2007 accompanied by a recent stabilization of liability markets and premiums. But they conclude that traditional reform efforts have little impact on premiums and fail to address many of the shortcomings of our current ”stable but still dysfunctional” liability environment and “divert attention from alternatives that may achieve a more just, reliable, and accessible liability system that promotes patient safety.”

The first nontraditional alternative or creative initiative they present is CRP’s, from the VA and University of Michigan to Stanford, noting the demonstrated and potential benefits as well as the implementation difficulties and the critical need for physician, institutional leadership and insurer commitment.  Next they review safe harbor practice guidelines, judge-directed negotiation, and administrative compensation systems all of which have had limited or no traction to date.

Finally, they forecast six developments likely to shape medical liability policy in the next decade and the need to act now to develop and implement “thoughtful and enduring solutions” in order to avoid or attenuate another medical liability crisis.

The second article, an editorial entitled “Medical Malpractice Reform, When Is It About Money? Why Is It About Time?” by William Sage proposes that traditional tort reform has had limited benefit and fails to address the underlying shortcomings of our current system which should be viewed and addressed as a health policy problem.

The author notes that CRPs address avoidably injured patients collaboratively without litigation while at the same time reducing defense costs, and that multiple benefits accrue when patients are appropriately represented to ensure settlements are fair. He goes on to describe CRPs as “do it yourself malpractice reform based on honesty, patient engagement with strong support from colleagues, and often a formal program of care for the caregiver.”  Finally he concludes that the major advantage of these programs is the time they save for all involved.

The evidence and literature in support of CRPs continues to grow and we are fortunate to be one of the early adopter states.

Written by: Alan Woodward, M.D., Chair of the Committee on Professional Liability, Massachusetts Medical Society

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