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Patient Compensation Without Litigation: A Promising Development

A. Russell Localio, JD, PhD
[+] Article, Author, and Disclosure Information

From University of Pennsylvania School of Medicine, Philadelphia, PA 19140.

Potential Conflicts of Interest: Disclosures can be viewed at www.acponline.org/authors/icmje/ConflictOfInterestForms.do?msNum=M10-1421.

Requests for Single Reprints: A. Russell Localio, JD, PhD, University of Pennsylvania School of Medicine, 606 Blockley Hall, 423 Guardian Drive, Philadelphia, PA 19140; e-mail, rlocalio@mail.med.upenn.edu.

Ann Intern Med. 2010;153(4):266-267. doi:10.7326/0003-4819-153-4-201008170-00010
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In 1977, Bernzweig (1) eloquently outlined the severe dysfunction in the United States' fault and no-fault injury compensation systems. Although recent legislation seeks to promote patient safety through confidential error reporting (2), the dysfunction persists, and initiatives to compensate injured patients are lacking (3). Advocates of “reform” focus on laws to limit medical liability insurance premiums and costs of the practice of defensive medicine. Common statutory changes, which neglect the predicament of injured patients, are caps on payments for pain and suffering. These caps range about 6-fold across the 50 states, and California's cap, fixed at $250 000 in 1975, has never been adjusted for inflation. One must question the equity of such wide-ranging limits (4). Meaningful reform must recognize 4 underlying issues. First, many patients (and at times their family members) are injured (5); however, as few as 1 in 50 patients injured by medical negligence ever files a claim (6) and fewer receive compensation. Second, expert disagreement about the cause of adverse medical events is pervasive (7), a reality that will challenge any form of adjudication model, judicial or administrative. Third, litigation, liability insurance, and reporting systems (such as the National Practitioner Data Bank) create disincentives for providers of care to admit error. Fourth, litigation (8), and even no-fault injury compensation programs (9), can be expensive, unpleasant, and fraught with ill will and delays.



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