But what about tort reform?

A lot of physicians were hoping the new health care reform bill would contain provisions for tort reform. Alas, they’ve come away from the table empty-handed; the bill offers little that’s new on this particular issue.

What it does contain, however, is some funding that will allow states to develop pilot projects that address medical liability. It’s not much money – approximately $50 million in grant money for which states can apply. And the goals are fairly narrow: The money must be used to develop alternatives to litigation that help resolve disputes over medical injuries, and/or to collect data and share it with health care organizations that focus on patient safety.

The Law Blog at the Wall Street Journal writes:

We checked in with folks from both sides of the aisle and, frankly, nobody seems all that troubled by this requirement. The trial lawyers are urging that states that apply for a grant to work on "patient safety" issues, rather than on other dispute-resolution techniques.

"We think patient safety is the way to go," Anthony Tarricone, the president of the American Association for Justice, told us in an interview. "If there’s no medical error to begin with, then there aren’t lawsuits." One example Tarricone tossed out: hand-washing programs at medical facilities to reduce infections.

It’s about time. I think this assessment is somewhat missing the boat, though, by not emphasizing the importance of alternative dispute resolution.

Few would argue that litigation is a good way to settle disagreements over who’s liable for a medical injury – and make no mistake, medical injuries can happen regardless of how many safety measures are in place. It’s grueling for the defendants, whose every decision gets raked over the coals. It’s grueling for patients and families too.

Despite the multimillion-dollar verdicts we read about in the headlines, most litigants don’t walk out of the courtroom with newly found wealth. The median range, according to this source, is $125,000 for an out-of-court settlement and $235,000 for a jury verdict. What’s more, most people injured by a medical error don’t ever sue, nor do they receive any form of compensation for their injury.

There’s also considerable debate over the extent to which runaway malpractice lawsuits are contributing to the cost of medicine. Last fall the Congressional Budget Office estimated that tort reform could save $54 billion over 10 years. Other experts believe, however, that med-mal costs have been exaggerated and that tort reform would result in negligible savings at best.

What’s been missing in the entire discussion? Two things: 1) prevention, after the fact as well as before; and 2) alternative, less stressful ways for everyone involved to make amends and fairly compensate the patient and/or family. Doug Wojcieszak, the founder of Sorry Works!, nails it with an editorial he penned last year on health care reform:

We need to shift the discussion from a political and legal fight to a focus on customer service and how to help the doctor-patient relationship transcend a medical error, and in so doing avoid costly litigation in most instances while improving quality and safety – and saving a whole lot of money in the process!

A growing body of evidence in the peer-reviewed medical literature shows that patients and families primarily file lawsuits against doctors because of anger, not greed. Patients and families become angry with their doctors (and nurses, hospitals, insurance companies, etc.) when communication, honesty, accountability and – literally – good customer service are lacking after a perceived error. In other words, patients and families are suing not so much because of errors, but because of the bad behavior surrounding errors.

It’s a whole different way of looking at the issue. It suggests that what we really need, in fact, isn’t tort reform but a more responsible, humane way altogether of dealing with injured patients. Critics can go ahead and complain that the health care legislation has done little more than throw a few table scraps in the direction of tort reform. I’m going to be optimistic that someone, somewhere, is going to have the guts to try a new approach that’s better for everyone involved and saves money besides. After all, we have nothing to lose.