Over at DB’s Medical Rants and at the Bloviator there’s been a continued interesting debate on Malpractice.  I suggest that you read DB’s post here, which as a bonus gets you two long comments from Ross (who writes the Bloviator).  The crux of this issue is how do you shoehorn what we theorists know about evidence-based medicine into the ill-fitting shoe of the American court system. Presumably the AMA and organized medicine should be doing something here.  Matt Quinn, who’s been absent from this column working on an interesting new project at Intermap Systems, has some ideas:

The medical profession needs to spend its time and energy fixing the problem (i.e. care that does harm and/or doesn’t follow institutional best practices) rather than protecting itself from the consequences of bad care.

I think that a constructive role that the AMA and the various clinical professional associations can play is in establishing evidence-based guidelines for care.  I know – easier said than done.  But every doc in the country doesn’t need to agree on what appropriate care means.  A 2/3 solution is better than none at all and professional associations – in an activist (versus protectionist) role – can drive this.  If I (or another non-clinician) were serving on a jury in a malpractice case, having evidence-based (professional) guidelines would make understanding whether care was appropriate much easier (and perhaps quicker and cheaper) to determine.  Without good (i.e. evidence-based) reasons to deviate from  guidelines – and an adverse outcome for a patient, fault is obvious. 

Further, clinicians can use the guidelines (perhaps built into EMR systems) to know when the care that they are providing deviates from evidence-based best practices.  If they feel the necessity to deviate, they should justify themselves.  While this might increase the prevalence of "defensive medicine" in exceptional cases, it would largely eliminate the necessity for "defensive medicine" for most cases.  It is incumbent on professional organizations and the physicians who compose them to ensure that their guidelines are updated to reflect the standards by which they will be judged.   

There isn’t, of course, a direct correlation between proper care and malpractice liability.  Most malpractice victims neither bring suit nor are compensated.  Some people who receive proper care receive malpractice awards.  Limiting liability robs justice from those who were wrongfully harmed and successfully prove their cases – while protecting the
perpetrators.  And does nothing to address those who received a judgment but weren’t wrongfully harmed, those who were wrongfully harmed and didn’t bring suit, or the incentive for the medical profession to hold itself to its own oath.

Of course Matt nails the real reason for the rise of malpractice in the Administration’s agenda

As I mentioned in comments over at DB’s my British heart tells me that you shouldn’t be suing someone who’s trying to help you (which I assume is the case in all malpractice cases). My American head tells me that that’s the way things are here, and the end result, as Matt points out, makes a lottery of the medical system. I have no firm opinions about how to solve the malpractice problem, but I do think that a no-fault error reporting system, or a separate medical court system, should be investigated. Unfortunately this is an arena in which none of the protagonists–organized medicine, trial lawyers, both political parties and the corporations looking for immunity from litigation who are hiding behind the medical profession for political reasons–is looking out for  anything other than their basest self-interest. The public good and patient safety are way down the list.