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Malpractice Plan Would Skip Courts

By James S. Davis, Contributing Writer

The School of Public Health (SPH) and the administration of Massachusetts Gov. Mitt Romney are developing a plan to keep malpractice cases from going to court, sending them instead before a tribunal of judges.

Advocates of the proposed system said it will curtail medical malpractice costs, which have contributed to a 77 percent rise in Massachusetts malpractice insurance premiums in the last five years.

A team from SPH—consisting of Professor of Law and Public Health Troyen A. Brennan, Assistant Professors David M. Studdert and Assistant Professor Michelle M. Mello—collaborated with Robert Pozen ’68, Romney’s chief economic adviser, to construct the proposal, which has been in the works for several months.

“It was Bob Pozen’s initiative,” Mello said. “He asked Dr. Brennan to consult on the plan because he [Brennan] had done previous academic work on this subject.”

Under the current system, a malpractice complaint must first pass a tribunal of judges, after which it may go to trial and lead to verdicts of potentially unlimited size.

The SPH plan, if implemented, would limit awards in malpractice cases according to the severity and type of the alleged patient injury.

On the other hand, under the plan, the plaintiff would have to satisfy a lesser standard of proof in order to receive compensation.

Rather than having to demonstrate doctors’ negligence, the plaintiff must only show that the harm suffered was “avoidable.” Thus the proposal may increase awards for many complaints.

“We want to have a different system where we have more people getting awards in smaller amounts,” Pozen told The Boston Globe. “We want to reduce administrative delay and costs, while increasing medical safety and having people learn from their mistakes.”

Mello added that under the new system, “cases will be decided much more quickly, and the whole process will be more open.”

According to Mello, Pozen drew inspiration for his ideas from the example of Scandinavian countries such as Sweden and Denmark, which have universal patient injury insurance but also limit damages in malpractice cases.

Pozen sought out Brennan and his colleagues to develop the specifics of the plan because of their “general expertise and knowledge of the Swedish system,” according to a spokesperson for Pozen.

Much of the foundation for the work of the SPH team, according to Mello, comes from the research of Friendly Professor of Law Paul C. Weiler, who has collaborated frequently with Brennan.

“The principle of the plan is correct, but it will only be a good plan if it increases access while also producing a good adjudication system,” said Weiler, an expert on medical malpractice law.

The plan will most likely not reach the state legislature for several years, Pozen told the Globe.

In the meantime, Pozen and SPH hope to launch a pilot program in the obstetrics departments of up to four hospitals. Obstetrics patients at these hospitals can choose to sign up for the proposed system of malpractice review.

The fate of the statewide plan may hinge on how well the pilot program performs.

Weiler said he is cautiously optimistic about the future of the proposal.

“I hope it is properly designed, because then Massachusetts can be a role model for the rest of the country,” he said.

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