Will a medical malpractice compensation system patterned after workers’ compensation work?

Medical malpractice compensation is a perennially hot topic. Will any type of compensation system, other than through the courts, work?

It seems various states, and groups, are mulling over a variety of ways to deal with medical malpractice compensation, rather than leave justice to an independent court and jury. People don’t seem to recognize that capping medical malpractice compensation is making a plaintiff a victim twice, or that if the victim is short-changed in terms of compensation, they will not be able to care for themselves properly. Someone needs to be held accountable for medical errors, and it’s not the victim that should be paying for those mistakes.

A Georgia-based group, Patients for Fair Compensation, is suggesting a medical liability structure based on the workers’ compensation system. Their reason for suggesting a change is that such a system brings down health care costs, as physicians will no longer practice defensive medicine. It makes one wonder if advocates for this type of a system truly understand the horrendous situation seriously debilitated victims find themselves in when people suggest they should take less money as compensation for the outrageous injustice of medical negligence.

With a philosophy like taking less for medical malpractice injuries, it should not come as too much of a surprise to learn that Patients for Fair Compensation is not a group of actual medical malpractice patients. It is headed up by a man who runs Jackson Healthcare. Jackson Healthcare provides hospitals with medical care professionals. On reflection, this group would hardly be in favor of pro-patient compensation.

According to their stated goals, they promote an advocate to guide a patient through the system. The main question here would be who that advocate is really working for – the insurance industry or the patient? Chances are it would be the insurance industry, which indicates a distinct bias. Once the claim has been filed, the idea is that it would be forwarded to a Medical Review Department to gather facts.

From there, it would move to an independent medical panel in charge of reviewing the claim once again and determining if it was an avoidable medical mistake causing injury. Once again, the concern is who does this process really protect, if the goal is to reduce compensation for medical malpractice victims?

The next step in the process would involve a compensation department, in charge of determining a fee schedule that addresses non-economic and economic damages. If a patient is eligible, they would be awarded damages according to a pre-determined schedule. Who determines the fee schedule? Not an independent jury. Who determines if a patient is eligible? Not an experienced medical malpractice lawyer. While this process may sound like it makes sense, the whole goal is to short-change the injured victim. Where is the justice in that?

The long and short of a compensation system, such as the one proposed by Patients for Fair Compensation, is that it makes the patient a victim twice, under the guise of trying to help the settlement process. What is really going on is that the insurance industry wants to save money on the backs of innocent people, injured by medically negligent health care professionals. Hope this system, or anything else like it, does not come to a state you live in. The determination of compensation for medical malpractice should rest solely with an independent jury – period.

Tom Robenalt is a Cleveland Malpractice Lawyer specializing in Cleveland Medical Malpractice cases in Ohio. To learn more, visit www.mellinorobenalt.com.

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