Medical Malpractice Policy: France

The "nuclear option"--a whip count and other musings: The Carpetbagger is trying to figure out if the Republican party can corral 50 of its Senators to vote to break -- not change, but break -- the rules and disallow filibusters for judicial nominations. Right now it appears there are 47 votes solidly against, plus likely GOP defectors Snowe (R-ME) and Collins (R-ME). That means Democrats need only two Republicans to join them, and there are between four and eight wavering Senators already. Based on how many previously uncommitted Republicans voted against the Federal Marriage Amendment, I think Democrats are in good shape.

My hunch is that the GOP does not have the votes yet. After all, if Frist had the votes, wouldn't he have gone through with this maneuver already? There doesn't appear to be much hope that a Social Security bill will pass, and most of the other major legislative priorities have already gone through. Frist's telethon with various conservative Christian organizations is going to be the opening act of the "nuclear option" play, and that the hope here is to raise enough support for ending the filibuster that it will give cover to Republicans who are currently wavering. Otherwise why waste time and energy with the photo-op, especially since failure will hurt his 2008 presidential ambitions? It's unclear whether or not this hope will become reality, but I would bet against it. The "filibuster against faith" message simply won't work--after all, Harry Reid is a pro-life Mormon who's voted for things like the Religious Freedom Restoration Act, and it's not like the members of the CBC are bunch of atheist heathens. Plus, how many Catholic Democrats are there from Massachusetts and Rhode Island? The press will not bite.

What's more, it's also my understanding that the Senate would have to engage in this sort of rule-breaking for each nomination; that is, a separate vote-filibuster-object-rule-object-vote sequence must occur each time the majority would like to force a floor vote on a judicial appointee. If that's the case, I think the political cost to the Republican party of the ad "senator X voted to break the rules and end checks and balances 10 times" is simply too high.

Ezra Klein has been doing yeoman's work summarizing the health care policy of the rest of the developed world. He's focused mostly on payment structures and quality of care, which are in the grand scheme of things far more important than handling the small number of medical errors (estimates are that in the US roughly .4% of all visits to a physician result in some form of malpractice). But I think it's important to recognize that a country's treatment of medical malpractice makes some difference in its ability to deliver health care to everyone. After all, if the cost of malpractice insurance is too high, the profession of medicine will be off limits to all but very wealthy private practitioners or to very large hospital chains, and neither of those groups is really interested in working in rural areas.

I want to emphasize that this is not an endorsement for GOP-style "tort reform", which is simply a facade for eliminating the right to bring tort claims of any sort. Real tort reform would probably look something like what Mark Kleiman has proposed in the margins of his thoughts: you have to get doctors, lawyers, and patients to sit at the table, and each group has to give up a little bit of ground. Medical boards need to have the power and gumption to discipline error-prone doctors, there should be a system for keeping real nuisance suits out of the courts and disciplining those lawyers who continuously bring them, and patients would have to accept smaller payouts--though perhaps more patients would get those payouts. Also, for reasons I don't yet understand, the current system really puts the screws to ob-gyns, so it is worth investigating policy that might help reduce their liability in cases where the fault really lies with the pre-natal caregivers (or worse, with the patient herself for not getting adequate pre-natal care).

How does it work? It turns out that that's changing. Up until 2002, France's malpractice system looked more or less like the United States'. Patients brought their cases to court and then either settled with the doctor/hospital/malpractice insurance company, or received an award. There were two main differences. First, France had no caps on malpractice awards -- if the judge or jury thought you deserved 600 million Euro because your child had cerebral palsy, you could get it [you probably weren't, because most of those jackpot awards come from jury trials, and your right to a trial by jury is not as great in Europe as it is here]. Second, there are several small differences that made it slightly harder for patients to win a case -- the plaintiff's burden of proof is slightly higher, the standard of care that doctors were required to provide was slightly lower, and statute of limitations on tort claims was shorter. There were also no review boards, arbitration panels, or mediation panels, which some states have established to try and act as gatekeepers to lessen the case load on civil courts and remove truly nuisance claims. But the actual legal system looked much like ours.

But this is no longer the way things work. In response to rising malpractice premiums, France has moved to a Scandinavian compensation system (I'll explain why it's called "Scandinavian" whenever Ezra covers the Swedish health care system). Under the French implementation of the Scandinavian system, wronged patients bring claims before their regions' government-appointed review board which is responsible for determining if compensation is in order and, if so, how much. For a patient to get paid, the board does not have to find the doctor at fault, or that medical negligence caused whatever pain and suffering the patient is experiencing. Money for patient relief comes from a national compensation fund, which presumably gets its cash either from a dedicated ~~tax~~ insurance premium placed on doctors and hospitals, or from general fund revenues. The closest analogy to this sort of system in the United States would be workers' compensation funds that many states run. The goal of such systems is not to find fault or establish causation as much as it is to provide a bit of compensation to workers who are injured on the job.

You can see how it would be easy for the doctor-hospital-insurance complex to game the system under a Scandinavian-style regime. Just as energy lobbyists try to get appointments to the rate-setting boards, and agribusiness interests attempt to hold the office of Agriculture Commissioner, the medical profession would probably try to get its backers onto the review boards. Even so, because the burden of proof is much lower than it is in the US, the processing time is shorter, and there patient needs to commit less time to the process, the number of claims is generally much, much higher, though payouts are smaller. Since you don't have to go through the agony of dealing with the legal system, you get a bit of money for your trouble and then get sent on your way.

Who pays? See above. It's not entirely clear what the revenue source is (a dedicated tax versus general funds), but there's a pool of taxpayer money used to pay out settlements. Hey, look! It's your government actually working for you! Take that, libertarians!

How effective is it? It's too early to tell. Finding data on the number of tort claims per capita average payout amounts has been like finding a date at a Microsoft party. On top of that, France has only used the Scandinavian system for two years, so there's not a lot of data on the subject. I have a gofer at Google Answers^TM working on this for me, so hopefully I'll be able to post the results soon. As for how successful the Scandinavian system is in ... well, Scandinavia ... let's wait until Ezra covers one of those countries.

Medical Malpractice Policy: France Now Playing: Outkast / ATLiens / Wheels of Steel

Medical Malpractice Policy: France
Now Playing: Outkast / ATLiens / Wheels of Steel