The rhetoric continues to be turned up in the "debate" about malpractice. This LA Times article suggests that a RAND study found that California’s $250,000 cap on non-economic damages in pain and suffering awards dramatically cuts the amount that juries want to give to seriously wronged patients. Incidentally juries are not told about the cap, so when they come back with a number it is reduced by the judge. Perhaps if more juries knew about that the awards for "economic" losses which are not capped would be much, much higher. In any event, expect far more cases, like the one reported via Michael Millenson’s talk about the woman who had both breasts wrongly removed due to a pathology error, turning up in the press.

Politically, though, this all seems to be at a dead end. If the current House and Senate can’t get anything done…well they’re hardly likely to become more Republican after the next election, are they? And when the Presidency changes hands next year, a real-to-god trial lawyer will be the vice-President (cue angry emails from my few Republican readers). Anyway, my point is that there are not the votes in the Senate to do anything about it, and I don’t hear even too many AMA members or Republicans wanting to abolish the Senate (although some on the left do!).

So perhaps the answer is to try something radically different. Taking malpractice out of the courts, and into expert based truly neutral arbitration. Having firm rules of adherence to evidence based medicine. Admitting medical errors, and compensating for them fairly from a national fund. Trying to improve the practice of medicine rather than the practice of defensive medicine. I don’t know the full extent of the answer, although there are many reasonable proposals out there. I do know that the current insistence on a California-model nationwide is not going to fundamentally solve the problem, and isn’t going to happen. So we might as well go for a big goal that makes a difference rather than failing to achieve a small one that doesn’t.