Experimental Tort Reform: States take different approaches to implement change

Only a nearly $3 million grant to New York state to test a judge-directed negotiation program in cases involving obstetrical and surgical injuries qualifies as tort reform, Smarr said.

In June, in addition to the nearly $20 million in demonstration grants, the government announced $3.5 million in planning grants to fund development of medical liability reform projects. These initiatives could be candidates for the health reform law’s demonstration program, said Michelle M. Mello, JD, PhD, professor of law and public health at the Harvard School of Public Health in Boston.

One idea that received a planning grant involved the creation of a list of “avoidable classes of events,” followed by cooperation with liability insurers, who would offer a standard amount of compensation to patients harmed in such incidents. The model, being developed in Washington state, also involves identifying avoidable patient safety problems and providing an acknowledgement and an apology when an event occurs. The idea is that a prompt apology and compensation would deter litigation.

Another effort given a planning grant in June that could be a candidate for the reform law program is a test of liability safe harbors, Dr. Mello said. The project, initiated in Oregon, entails development of legislation that would use practice guidelines to define the legal standard of care. The legislation would also include a plan to evaluate its effectiveness.

“The idea here is if you have a doctor who has complied with a best practice guideline that some trusted body has deemed representing good practice, and if he’s later sued out of an incident or harm arising from that care, he should be able to use the practice guideline as a defense,” Dr. Mello said.

The American College of Surgeons supports this concept, said its president, L.D. Britt, MD, who added that safe harbors are “ready for primetime.”

A big thrust of the health reform law is to get doctors to use evidence-based research. The safe harbor concept is “a way to provide a concrete financial incentive to push them in that direction,” Dr. Mello said. Some issues that need to be worked out are how to select the guidelines among the many sets that exist and how to make that process transparent and defensible so that plaintiffs’ attorneys don’t criticize them as self-serving standards created by doctors, she said.

Two other demonstration grants and a planning grant involve the idea of early disclosure and compensation. Under this model, the defendant would quickly disclose the error and offer to pay damages and reasonable attorney’s fees within a set time frame. The plaintiff would agree to forego further recourse in court.