Perspective: Would “No Fault” be a better way?

By Charles A. Pilcher MD FACEP
January, 2010

Last month I reported on the defense verdict in the case of a Bellingham woman left with brain damage as a result of a surgical complication. The case bothers me, and for the past few weeks I’ve been asking myself “Isn’t there a better way?”

Medicine is not a perfect science nor is the human body a perfect organism. Things go wrong. No one asks to have cancer, appendicitis, a major injury or a stroke. Nothing is completely preventable, nothing is always diagnosable, and nothing is completely fixable. Some things just happen.

Surely, some people destroy their body through their own bad choices, and some “body repairmen” are more competent than others. But nearly every doctor does his or her absolute best in every situation presented. Their intentions are good. Still, things can go wrong.

When things do go wrong, how can we “do the right thing?” Why do we have a system that forces litigation, attempts to prove incompetence in usually caring physicians, appears to over-compensate the occasional “winner,” and leaves (in my estimate) ten times more “victims” out in the cold?

I can understand why the Bellingham case was filed. The patient’s injuries were major and her family devastated. Future expenses will be huge. Her attorney did his best. But a jury agreed with the defense, the woman likely remains in a nursing home, and a “medical bankruptcy” would be a predictable outcome as the costs of her care mount.

Is this the best way?

Doctors know, probably better than attorneys and patients, that bad things happen. That’s why they cover those “therapeutic misadventures” with malpractice insurance. In my mind the key question is this: Are we using all that money contributed in insurance premiums in the best possible way? Why should only a small percentage of injured patients recover the huge majority of those funds? Accidents or misjudgments are predictable, as they are with automobiles and driving, or buildings and fire, yet every bad thing that happens is not resolved via a lawsuit. Could the medical equivalent of an insurance adjuster resolve these situations more equitably?

What if the system guaranteed that, when an unfortunate medical event occurs, expenses and even damages, could be recovered from the insurance pool? Rather than filing a lawsuit against a physician, an injured patient would file a claim against an insurance pool.

This would not eliminate the need for plaintiff or defense attorneys. In fact, it would probably increase the need. Each party could continue to have representation, but the outcome would not be in doubt; compensation would be provided. The only question would be: “How much?” The average value of each case would go down as more patients took advantage of the available funds, but so would the time and trouble of reaching a settlement. Matters would be handled through the insurance system rather than the courts.

But what about the truly incompetent physician?

The courts have proven to be a poor system for removing incompetent caregivers from practice. The courts serve only to point out who those caregivers are. However, an insurance pool in which more victims filed more claims would more quickly identify the incompetent. At that point, state licensing and disciplinary bodies could step in, as they do now but earlier, and better deal with physicians with an excess of claims. In fact, probably more work for attorneys.

I don’t claim to have the answer, but I bet even the defendant physicians in Bellingham, and certainly the victim and her family, would like this system better. Maybe even the attorneys?