Crisis Becomes Opportunity

Increased liability premiums, lax court requirements for evidence of fault, and the threat of insurers pulling out of the medical liability market culminated in France’s malpractice crisis. The government responded with a 2002 law that reigned in unnecessary law suits against doctors and hospitals by re-establishing the fault criteria for treatment injury or missed diagnosis while simultaneously creating a no-fault liability system for people with serious medical injuries.

The 10-year anniversary of the no-fault system prompted French researchers to examine the outcomes of the law and its potential to add to the continuing discussion regarding compensation after medical injury.

The law works like this: In a lawsuit brought against a doctor or hospital after a medical error, a patient seeking compensation for the injury would have to prove fault–this means that the patient would have to prove that there was negligence or deliberate harm done by the health care provider that resulted in their injury. (The legal principal of fault liability can be contrasted with strict liability, where a patient would be owed compensation after a medical error even if there was no negligence or deliberate harm done.)

However, for French patients suffering from serious and unpredictable injuries where fault has not been proven, the no-fault compensation model applies. This creates an out-of-court settlement possibility that limits the number of court cases against medical providers and offers patients a faster way to receive compensation.

The decision to rule in favor of compensation for the patient is made by a governing body created by the no-fault law called the Regional Compensation Commissions, which is comprised of health care providers, insurance companies, and patients/victims groups. This group must give their first decision within 6 months, making this process much faster than traditional legal processes.

Commentary

In the United States, there have been attempts to create a similar system. The Florida legislature proposed the “Patient’s Compensation Commission”, where an injured patient would file a claim with the help of a patient advocate, a medical review department would research and review the claim, and then a fee schedule would be used to determine and recommend an amount for economic and non-economic damages. If there is a dispute, a judge would determine whether law was appropriately applied.

The system would have hypothetically been faster and much cheaper than the current system in Florida. Additionally, the legislature hoped that by removing blame from the equation, physicians would be less likely to practice defensive medicine–which would in turn lower the cost of medical care by billions.

The bill, which did not pass, would have routed money that physicians pay to malpractice premiums to funding the Patient’s Compensation System.

I believe the French system and the defeated Florida system are good methods to help compensate patients that have suffered serious injuries because it allows patients to receive that compensation faster while taking pressure off the justice system, curbing liability, and lowering health care costs.

Barbot, J. et al. Health Policy. 2014; 114(2-3): 236-245.

by

Regina Bailey, MD, JD, LLM