Public healthcare, private practice
Is shielding doctors from malpractice fair?
One place that President Obama breaks with his own party on the direction of healthcare reform is his apparent interest in reigning in malpractice suits. This may partly be the kind of “pragmatism” to which the president often alludes as his guiding philosophy: offering a public plan to compete with private insurers will require some industry support and malpractice protection has long been a point of contention between the American Medical Association and congressional Democrats.
The truth, however, is that Obama’s pragmatism on this issue — if it is that — has a longer history than the early days of his presidency. In 2005, he proposed the Sorry Works program along with Senate colleague and erstwhile primary opponent Hillary Clinton. That idea focused on dispute resolution, apologies by doctors and hospitals, and out of court settlement for medical errors.
As a former lawyer, President Obama understands the immense financial costs of malpractice litigation, particularly when viewed as a system wide expense. High malpractice awards involve more than just the legal payout: malpractice insurance, defensive measures such as additional, often unnecessary tests by doctors to protect themselves, and the costs to our legal system as a whole all add onto the pile. One practical reason to reign in malpractice suits is therefore lessen or eliminate a significant source of total healthcare costs in America.
But there are reasons for and against Obama’s proposal from the perspective of fairness as well. As a patient, it is easy to feel overwhelmed by the institutional and scientific complexities that come from interacting with the medical systems. All too often, these feelings aren’t far off the mark. Very few even well-educated patients have the knowledge to make truly sound decisions about their own care, and they place enormous trust and faith in the doctors who treat them. A major medical accident, even without fault, not only has life-altering — even fatal — consequences–it also breaches that trust.
It’s almost impossible to create a perfect monetary analogue for the pain, suffering, and betrayal that attends medical accidents. But the debate over malpractice regulation shows that the two relevant parties — doctors and patients — have different standards of fairness as guides.
Doctors believe they operate in an imperfect environment, but have been willing to accept guidelines for conduct. On their account, operating within those guidelines should insulate them from harm. This is a rules-based idea of fairness: if I play within the rules, I can’t get in trouble–the rules specify a prodcedure that’s fair for everyone.
Patients tend to see fairness from a retributive standpoint: medical mistakes incur a harm that should be repaired.
Practically, resolution of this issue will probably mean a hybrid idea of fairness. Whatever its flaws, one virtue to the approach that Obama proposed with Sorry Works in 2005 is the level of texture it added to the idea of medical harm. Money can do something to repair a debilitating medical mistake, but it can’t rebuild lost trust. For that, the only antidote humans seem to have ever found is reconciliation and forgiveness.
–Sam
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- Dealing with death
- Private values, public policy
- The Millenials and healthcare reform
- Who lives and who dies?
- Healthcare reform raises tough moral questions
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