States may offer medical liability solutions

AMA will study medicolegal panels and laws to protect physicians' assets to see if they could work on a national level.

By Tanya Albert, AMNews staff. July 7, 2003.

Chicago -- While the push for tort reform continues at the federal and state levels, physicians at the AMA's Annual Meeting in June started to look beyond caps and began considering other ways to improve the medical liability system.

For example, physicians want the ability to talk about errors -- defined as an unintended act or omission or a flawed system or plan that harms or has the potential to harm a patient -- without the fear of being named in a lawsuit. The frank discussions are a way to find problems with the system and prevent some errors from happening in the first place, doctors say.

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"Physicians have become intimidated by the law," said Leonard J. Morse, MD, former chair of the Council on Ethical and Judicial Affairs. "We need to talk about issues of error and learn from those errors."

The CEJA report adopted by the AMA House of Delegates says:

Physicians should play a central role in identifying, reducing and preventing health care errors.
Physicians should participate in developing reporting mechanisms that emphasize education and system change.
When an error occurs, physicians should offer a general explanation regarding the nature of the error and the measures being taken to prevent similar occurrences in the future.
Physicians have a responsibility to provide continuity of care to patients who have been harmed. If a patient loses trust in a physician, another physician should step in.
Physicians should seek changes to the current legal system to ensure that all errors in health care can be safely and securely reported and studied as a learning experience for all participants in the health care system, without threat of discoverability, legal liability or punitive action.

"A mark of a professional is those who share mistakes to not have them repeated," said general surgeon John W. McMahon, MD, a delegate from Montana.

Medicolegal panels and beyond

The AMA will spend the next six months studying mechanisms that some states have found helpful in weeding out frivolous lawsuits to determine whether the models might work on a national level. They'll report their findings at the Interim Meeting in December.

New Mexico has had a medicolegal panel reviewing medical malpractice cases since 1976 and doctors there have found that resolving cases at that level has saved them legal fees.

New Mexico has had a medicolegal panel reviewing medical malpractice cases since 1976.

"We felt we should share what's working," said delegate Steven Kaning, MD, an Albuquerque, N.M. nephrologist.

The AMA also will study potential reforms that would limit how much of an individual's personal assets could be used to pay jury awards that are larger than the limits on a physician's medical liability insurance policy.

"Asset protection varies from state to state, that's why we need a national ground rule," said radiation oncologist Richard Pieters Jr., MD, an alternate delegate from Massachusetts. "It's devastating to lose supplemental retirement or college tuition funds."

In addition to the studies, the AMA will work with state medical societies to educate physicians about Good Samaritan laws in their states so they know to what extent they have immunity from liability when acting as Good Samaritans.

The Association also modified its policy, advocating that each hospital medical staff should determine whether it will require medical liability insurance coverage as a condition of employment.

If voluntary staff members are required to have insurance, then salaried hospital physicians should be covered by adequate insurance or protected financially through self-insurance mechanisms that the hospital establishes so that the burden does not fall unfairly on medical staff, the AMA said.

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