SPEAKOUT: New Zealand's approach points the way on medical liability

By Sen. Bob Hagedorn,

Saturday, March 22, 2008

The ongoing debate in the Colorado General Assembly over medical malpractice highlights the shortcomings of the current system. The lawsuit-based status quo fails on a number of fronts.

* It does a poor job of policing physicians or preventing future medical errors.

* It wastes huge amounts of money that certainly won't help address unmet medical needs of uninsured working families.

* It creates conflict that undermines the doctor-patient relationship.

* It further restricts access to needed health care, especially for those who might already face hardships in finding care, as doctors will steer clear of high-risk services like delivering babies.

The current debate at the Colorado Capitol focuses on the proper ceilings for medical malpractice awards, and pits personal-injury attorneys who make their living suing doctors against the health-care community, including doctors and nurses.

Regardless of the outcome, the end result likely won't fully satisfy anyone. And it shouldn't, since a debate over medical liability caps doesn't address the core of the issue.

Two examples highlight this fact.

U.S. neurosurgeons are sued for malpractice on average once every two years and pay among the highest malpractice premiums of all physicians. Are neurosurgeons as a whole reckless or poorly trained? Of course not. They are among the most accomplished and well-trained of medical professionals. Rather, they have the misfortune of practicing a high-risk specialty where even well-performed procedures can leave patients with disabilities. The current medical malpractice system ill-serves them regardless of where caps on jury verdicts are set.

The current system also falls short when it comes to cases of cerebral palsy.

A 2004 article from The Atlantic magazine noted "the growing medical consensus that in the overwhelming majority of cases, this severe form of brain damage is not the fault of botched deliveries, but instead relates to causes long before birth." Yet, juries routinely blame the delivering doctor for causing cerebral palsy during childbirth.

As a result, in order to protect themselves, obstetricians are increasingly performing Caesarean sections to avoid being blamed for an infant's cerebral palsy. And, in fact, the incidence of Caesarean sections has grown from 5 percent to more then 30 percent of all births since the 1970s. Caesarean sections are far more expensive and more dangerous for most women than natural birth.

Children with cerebral palsy often have extraordinary needs that cost their families huge amounts of money and time. These needs must be met regardless of the cause.

Thus, one need not spend much time looking into the U.S. medical liability system to conclude that there must be a better way; and, in fact, there is.

New Zealand has succeeded in compensating patients and ensuring accountability among physicians by taking a markedly different approach.

In New Zealand, patient compensation is rooted in a process that shares some traits with Colorado's workers' compensation system. Injured patients get compensation as needed without consideration of fault.

Meanwhile, a separate and distinct process focuses on identifying medical errors and improving quality of care. Physicians can face a range of disciplinary outcomes, including losing their licenses to practice. Emphasis is made, however, on learning from mistakes and improving the system so errors won't be repeated.

Can a system like New Zealand's simply be imported wholesale to Colorado? Possibly, but not likely. New Zealand's universal health-care delivery system is very different from that of the United States.

But the lesson here is that we, as a state, should aspire to move beyond the current medical liability dynamic toward a system that protects and compensates patients, targets the reduction of mistakes and accidents, restrains costs and doesn't declare open season on physicians.

Sen. Bob Hagedorn, D-Aurora, is the chairman of the Senate Health and Human Services Committee.