I watched the CSPAN coverage of the Senate debate on medical malpractice law reform. There were three issues, all of which have a sortition-based solution
- Defensive medicine, a doctor ordering tests or procedures to help protect against malpractice. But as Sheldon Whitehouse said, one can't draw the distinction between good defensive medicine, protecting a patient from possible risk and bad defensive medicine that solely protects the doctor. Also, they said we can't distinguish those who might order tests and refer them to the facility owned by their friends.
- The Jury Verdict. Sheldon Whitehouse said that even though a jury system makes people uncomfortable, it is supposed to. It is the refuge of those who might be victimized by the powerful, by corrupt legislatures or governors.
- And this was discussing reducing medical malpractice liability for those who sever the rural and underserved communities.
And they cited a CBO Study that showed that tort reform would reduce
medical costs only marginally.
Quoting from the Congress Budget Office itself, Evidence from the states indicates that premiums for malpractice insurance are lower when tort liability is restricted than they would be otherwise. But even large savings in premiums can have only a small direct impact on health care spending--private or governmental--because malpractice costs account for less than 2 percent of that spending.(3) Advocates or opponents cite other possible effects of limiting tort liability, such as reducing the extent to which physicians practice "defensive medicine" by conducting excessive procedures; preventing widespread problems of access to health care; or conversely, increasing medical injuries. However, evidence for those other effects is weak or inconclusive." They cited Tillinghast-Towers Perrin and the Office of the Actuary at the Centers for Medicare and Medicaid Services for the two percent number.
Doctors should save money in lieu of taxes in an account. As many years go by and whether they committed malpractice, they would go before a sortition jury. Those who were permanently injured would also go before the sortition jury. If overall the doctor provided beneficial health care (less malpractice, more handling the uninsured and giving charity care and possibly practicing in underserved areas), they get to spend the money from the retirement account tax free. The sortition jury would like at the entire record of the physician, not just the one where, using the words of the Senators, one of the "best doctors" removed the wrong leg. Those who have a bad record, the money would go to the victimes and back to those who provide medical care. Ideally, we would also look at the total spending for which the doctors were responsible. So those that cared for many patients, had good outcomes, few mistakes, and spent little money would get a nice reward. Those that had the opposite would have a poor retirement. I talked about individuals having to put money away and then is distributed upon retirement after reflection on their lifetime record with twenty-twenty hind sign.
Of course, we would also have other funds which would pay the immediate medical bills of those injured. Remember that there are many that have bad outcomes after the medical care and who are left paralyzed or otherwise disabled. They don't get money from the medical malpractice system because there was no negligence. But they still need to be taken care of by somebody, whether the government, charity, or their regular insurance. I note that as Senator Orrin Hatch said, they were only capping non-economic damages.
Another concern is that only a minority of the money put into the medical malpractice system as premiums is actually received by the injured patient in care. And the CBO study said that "claims that did not lead to payments incurred average defense costs of $22,000 in 2002, compared with $39,000 for claims that did result in payments." But would sortition juries which could operate without lawyers, but not without medical experts, reduce the total expense of finding "the truth" and awarding money where it was due.