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Malpractice
Looking For A Way Around Medical Litigation	Congress has been considering proposals to allow patients to sue health maintenance organizations (HMOs). But the tort system is an inefficient way to compensate victims of injuries and medical malpractice, say Jeffrey O'Connell and James Neale of the University of Virginia Law School. Some HMO critics are asking why patients should be allowed to sue doctors, while HMOs -- which are increasingly determining methods of treatment -- are shielded. But O'Connell and Neale argue that juries have enough trouble trying to figure out who is at fault in auto accidents, "let alone failed surgical procedures." For example, if a patient with cancer is treated and then gets sicker, what portion of the outcome was caused by the cancer and what portion by the treatment? They propose what they believe to be a better way to handle medical liability cases: Their "early offer" approach would allow malpractice defendants a relatively brief period -- say four months -- in which to offer to cover plaintiffs' economic losses, plus reasonable attorney fees, in exchange for eliminating their tort liability. Plaintiffs would be free to refuse the offer -- and probably would in cases of flagrant malpractice. If they did, though, they would be required to prove "intentional or wanton misconduct" -- rather than simple negligence. Source: Peter Passell, "Battle Over Right to Sue HMOs Isn't Going Away," New York Times, July 23, 1998.
Managed Care Malpractice Suits	Legislation now before Congress would allow patients to sue employer-sponsored health plans and administrators for malpractice in state courts. Under the proposals, workers could sue employers as well if they helped decide health coverage. Damages would be sought if needed benefits were denied or curtailed. Health insurers, business groups and employers are fighting the proposed laws, contending the change would wreck the cost-cutting gains made in health care in recent years. But doctors' groups and trial lawyers are backing the proposals. More than 80 percent of Americans with employer-sponsored health insurance belong to a Health Maintenance Organization, a preferred provider organization or a point-of-service plan that lets members pay more for care from doctors outside their plan's network. That proportion is about double what it was in 1990. While national health spending topped $1 trillion in 1996, the 4.4 percent rate of increase in prices was the lowest in 30 years -- a hard-won improvement business leaders don't want to see jeopardized by a cascade of new lawsuits. Some 123 million Americans are covered by private employer plans -- the largest group by far covered under the existing six health-care systems. The other five health care systems are state and local government employee plans, covering 23 million; federal employee plans, 9 million; individual insurance plans, 16 million; and Medicaid and Medicare enrollments, 37 million each. Some 41 million Americans are uninsured. Medical malpractice awards have reached as high as $100 million, according to the Physician Insurers Association of America. Source: Robert H. Gettlin, "New Malpractice Target: HMOs," Investor's Business Daily, June 4, 1998.

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