Welcome back. This is the second of two sessions on medical malpractice. In the last session, we dealt with the basic law and process of medical malpractice in the US as it has existed and largely exist today. This session is more forward-looking as we explore some of the problems that exist with the current medical malpractice system and some of the reforms that scholars and policymakers, and lawyers, and doctors have proposed to make the system function better and serve the basic ends that we want the system to achieve. To review, what we're asking medical malpractice law to do is to serve two very important ideas. The first is that of compensation; compensating victims of bad medical results and helping them overcome their injuries or through monetary damages. Likewise and equally important is the idea of standardizing and improving the quality of medical care by imposing a deterrent function. The notion that there will be litigation consequences for providers who are proven to fall below the basic standard of care. As I mentioned in the last lecture, these are crucially important goals. We want a system to do that, but the current medical malpractice system is problematic on both facts. Certainly, lots of money changes hands in our medical malpractice system, but from a compensatory point of view, the system is simultaneously overcompensatory and undercompensatory. In other words, there's lots of patients and lots of victims of medical error who don't see a dime either because the litigation process is too inaccurate to allow them to prove medical error or perhaps because their injuries or the pain that they suffered was very real, but not extensive enough to justify bringing this very expensive lawsuit that medical malpractice law currently requires. On the flip side, as the media often publicizes, every year we see a handful of huge verdicts that are often contested and are often characterized as overcompensating a particular patient while other patients go uncompensated. So there's an inherent inaccuracy on that side. Many doctors say that the system overdeters. You've heard the phrase defensive medicine or overly cautious medicine and we certainly don't want to medical malpractice system that prevents patients from receiving the optimal care because providers are worried about liability. This has led to lots of proposals for reform. Moreover, even if we think the system is working relatively accurately, relatively fairly, there's no question that it's extraordinarily expensive from a procedural point of view. Bringing a medical malpractice case is hard and expensive. Defending a medical malpractice case takes a lot of expense and expert testimony. All together, this leads to a lot of costs and indeed, over half of the costs that go funneling into the medical malpractice system, don't go to compensating patients. That's a problem. They go to court costs, expert testimony, lawyers, insurance companies. What we want is a more streamlined system where if we're going to reallocate compensation to try to make right by victims of medical error, we don't want so much captured by a very inefficient procedural system. This has led to perhaps the most sweeping reform proposal that scholars have made, that doesn't exist for medical malpractice law anywhere in the US, which is to completely do away with the standard of care requirement or the fault requirement. In other words, scholars have proposed doing away with the question of whether or not a specific provider breached a specific standard of care and instead just going to the much easier to verify a question of whether a patient was injured by a bad medical result. This would mean many more patients would be compensated, which in turn would mean the dollar value of compensation would have to get quite a bit lower. It would look more like an insurance function rather than a tort law function. We see examples in other parts of US law. For instance, our workers compensation system for people injured on the job, doesn't ask whether the employer was at fault. It simply asks, was the person at work doing his or her job and injured? If so, they're compensated on a fairly low value schedule that's promulgated beforehand. In the healthcare context, with respect to certain vaccines, if people are injured with predictable side effects, they receive compensation from the National Vaccine Compensation Board without having to go through litigation proving the manufacturer at fault. So we have other examples of this. No state has yet operationalized it in medical malpractice law. Although certain other countries have around the world. In the US, the reforms that do have traction that we do see examples of it at the state-level, tend to fall under four basic clusters. First, damage caps, limiting the amount of recovery and thereby bringing down the cost to the medical profession. Number 2, procedural reform. Trying to streamline and make more accurate and less expensive, the process of adjudicating breach of the standard of care. Third, variations on the standard of care itself, moving more toward a uniform, simple to prove standard of care and fourth, reforms at the margins to make sure that the litigation process doesn't get in the way of optimal practice of medicine. I'll just the last first and briefly. I alluded to the fact that what we want after a bad medical result, is often the physicians and nurses, and other caregivers involved in the team, that where the result happened, to get together, figure out what went wrong, talk openly, and then take corrective action. That sounds great. It's what we want to happen. The problem would be in a state that allows those kinds of corrective actions to be admitted into a subsequent medical malpractice suit about what went wrong, that would then frustrate and deter the healthcare provider's willingness to engage in that very beneficial activity. So one reform that many states have taken and that I heartily endorse is creating special rules of evidence that say, "Sure, we're going to let them medical malpractice suit go on, but we're not going to allow the plaintiff to admit evidence of after-the-fact corrective measures by the providers involved." Relatedly, we know from research, that sometimes what's best for the patient and the provider after a bad medical result occurs, is a sincere apology. Sometimes that's what a patient wants more than anything even more than a lawsuit. So we want to encourage that kind of behavior. We want to encourage providers to be able to say, "I'm sorry about what happened in this procedure." There's sophisticated studies by Michelle Mello and others, to back this up. However again, existing tort law might permit that apology to be admitted against the provider in many states. I applaud the states that are taking the lead in reforming their trial procedures and their evidence law to make those apologies inadmissible before the jury in a medical malpractice suit. So turning to the other three key reform areas, first to speak to damage caps, which are fairly easy to explain. I've spoken to the critique of medical malpractice law in its overcompensation of particular patients through multi-million dollar judgments. The ways some states have responded to that is to try to make damages more regularized by imposing limits or caps on damages, particularly, what we call non-economic damages, things like pain and suffering, or emotional harm. So in 2016, 33 states cap damages for non-economic harm in some way, many other states cap basic economic harm or disability damages. So this is a reform that has traction in a lot of states. Each state is different, and each state requires a question for what damages caps occur. But this is certainly a form of reform that's very widespread nationally. We even see some efforts, including from the current administration to implement a national damages cap and that's something to follow. That would be a big change in medical malpractice law which has traditionally been a province of state law if we have a uniform national damage cap. I allude to procedural reform and what we mean here is that medical malpractice cases in the traditional fashion play out in a trial court with lots of expert testimony which is quite expensive and inefficient before a lay jury who may never have thought about medical causation and medical standard of care before they showed up for jury service. A lot of observers say,"This isn't the right way to do it. What if we could channel these cases to a more expert panel, perhaps, of health care providers or to a more streamlined way to resolve the dispute." So as far as the expert panel goes, what some states have done is require patients and their lawyers, before they file a medical malpractice case in ordinary court, to take it first to a medical screening panel, staffed by doctors and nurses and patient advocates who know something about medicine, and that expert panel gives their opinion of whether the standard of care was breached and whether this caused a bad medical result. It's not binding. The constitution forbids us from completely taking the jury trial right away from patients in any state, but even a non-binding declarative statement from a bunch of medical experts, about whether a patient has or doesn't have a case, often serves as a catalyst for both parties to settle the case without the expensive of litigation once the medical experts have weighed in. Another form that some states have required and some private contracts require with patients is that they first take their dispute to arbitration or mediation. For non-lawyers, I guess I would describe these as litigation light. They do look something like litigation. There's two parties. They're often represented by their lawyers, but it's much less expensive. There's fewer rules of evidence. There's not a jury involved. It's more informal and the hope is that parties could get to the essence of the matter and perhaps either resolve the dispute or at least frame their differences efficiently without of the expense and procedural requirements of a full-blown trial. So these, both medical screening panels and arbitration tribunals, are on the rise in different states around the country. Finally, states are starting to move away from the classic locality-based standard of care toward a more nationally uniform standard of care. This is a trend which is picking up speed. I alluded to in the last session and I predict that the majority of these states within a decade will be applying something that looks much more like a national standard of care. This creates efficiency because it means that doctors and testifying experts are much more familiar with a single standard of care and thereby reduces some of the procedural costs of medical malpractice litigation. Before closing, I'll allude to another major shift in medical malpractice liability which is also taking place and will pick up speed in future decades and I'll adjust more directly in the next few sessions. That goes to the question of who should be liable at all? It's a very traditional regime we have that is grounded in the individual control on autonomy that physicians have over caregiving that says that individual professionals are the ones being sued in these cases at all. In most other areas of consumer service or consumer products, it's the big institution that guarantees the quality and as such, is subject to lawsuits for substandard quality. So as hospitals, and even insurance companies exercise more control and care over which doctors they select, and even over the care that is given, within the four walls of the hospital, and standardizing practice, and implementing checklists and the like, we would expect, and indeed we're starting to see more liability going to the institution rather than the individual physicians within the four walls. I think that's the way medical liability ought to go. I think it's more efficient. I think it fits with the developments in medical practice. Those are the topics that we'll take up in the next few sessions. Thank you.
