Q&A: Health Law Expert Discuss Today's Medical Malpractice

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An interview with medical malpractice expert, Michelle Mello, JD, PhD.
An interview with medical malpractice expert, Michelle Mello, JD, PhD.

As US citizens continue to adjust to the changing political landscape, many in the medical field are wondering whether now may be the right time for medical malpractice reform.

A recent perspective published in the New England Journal of Medicine highlighted reform as a real possibility, even as the current malpractice environment remains stable.

In an interview with Endocrinology Advisor, Michelle Mello, JD, PhD, of Stanford Law School and Stanford University School of Medicine in California, and one of the authors of the perspective, discussed the key issues surrounding medical liability, and why now is the right time to address malpractice reform in a meaningful fashion.

Endocrinology Advisor: Can you briefly describe the current state of medical liability in the United States?

Dr Mello: Providers and physicians pretty much universally agree that medical liability is burdensome, drives up healthcare costs, and makes their lives unpleasant. Empirically, there are variations across states in terms of how big the [pressure of the] liability environment is. However, providers tend not to see it that way; they see medical liability as a uniform and ongoing burden.

Endocrinology Advisor: In your opinion, does the current litigation process favor one group (ie, patient or practitioner) over the other?

Dr Mello: There are aspects of the process that are unpleasant and arguably unfair to both sides. I do not think the outcomes systematically favor one group over the other. However, when you talk about the broader group of people who have been hurt by malpractice and would like to bring litigation, the system very much disadvantages them, because most will never be able to find an attorney and bring a claim.

Endocrinology Advisor: What are your thoughts on physicians practicing "defensive medicine" in response to the current malpractice climate?

Dr Mello: Defensive medicine is a practice that pretty much everyone agrees goes on a lot; however, it is hard to quantify. Our best estimate is that it contributes $45 billion dollars a year to the national healthcare bill, which is not a small amount of money. On the other hand, it is a small amount when compared [with] overall healthcare spending.

Endocrinology Advisor: What specific aspects of medical malpractice litigation need to be reformed?

Dr Mello: There are several aspects. First, it is incredibly expensive. The amount we spend on overhead costs is about 55¢ on the dollar. The second problem is the system is very hard to access for people who are injured by negligence because it requires attorney representation, and attorneys only work on contingency fees. The third problem is the imprecision [of] the system. 

Although there are many people who are never compensated for their injuries, there are also many cases that do not appear to be meritorious that [do] garner compensation, which can be hard to avoid under the current rules. The fourth problem is that it is a very lengthy [process]. On average, it takes about 3 years for an injury to work its way through the system, and that leaves both patients and providers under a cloud for a very long time, which can be quite destructive for everyone involved.

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