A new New England Journal of Medicine article is critical of arbitrary damages caps in medical malpractice cases. Here is a link to the article, which is titled “A Systematic Approach to Containing Health Care Spending.”

The section mentioning caps is just one section in the article. It states:

More than 75% of physicians — and virtually all physicians in high-risk specialties — face a malpractice claim over the course of their career. Regardless of whether a claim results in liability, the risk of being sued may cause physicians to practice a type of defensive medicine that increases costs without improving the quality of care.

Strategies to control costs associated with medical malpractice and defensive medicine must be responsible and targeted. These strategies must not impose arbitrary caps on damages for patients who are injured as a result of malpractice. According to the Congressional Budget Office, arbitrary caps on damages would reduce national health spending by only 0.5%. But although such caps would have a barely measurable effect on costs, they might adversely affect health outcomes.

A more promising strategy would provide a so-called safe harbor, in which physicians would be presumed to have no liability if they used qualified health-information-technology systems and adhered to evidence-based clinical practice guidelines that did not reflect defensive medicine. Physicians could use clinical-decision support systems that incorporate these guidelines.

Under such a system, the physician could use the safe harbor as an affirmative defense at an early stage in the litigation and could introduce guidelines into evidence to avoid a courtroom battle of the experts. The patient could still present evidence that the guidelines were not applicable to the particular situation, and the judge would still determine their applicability.

It is critical to develop guidelines with credibility. A promising step is an initiative called Choosing Wisely, in which leading physician groups released guidelines on 45 common tests and procedures that might be overused or unnecessary. Given the important role of guidelines, physicians who participate in developing them must be free from financial conflicts of interest.

My Take:

I agree. Caps don’t address what doctors fear: unfairly getting sued when they followed the standard of care. Instead, caps reward the doctor and his insurance company when the doctor is held accountable for not following the standard of care and hurting a patient.

An affirmative defense for doctors who follow clinical practice guidelines would help in two ways: (1) it would ease doctor hysteria over the risk of getting sued; and (2) it would encourage doctors to know and follow clinical practice guidelines—thus improving patient safety.

The emphasis on clinical practice guidelines would also actually help plaintiffs in cases where physicians did not know or follow the guidelines.

I also believe that health courts for deciding medical malpractice cases should at least be on the table. If a system could be devised that did not stack the deck against either side, then it should at least be discussed.