The New York Times on Sunday featured a piece on “judge-directed negotiation” as a possible solution to current medical liability problems. The approach involves assigning a judge with medical knowledge to hold a settlement conference early in the lawsuit process to more actively push for settlements. A nurse with legal training assists the judge in the settlement conference. The approach has been used in the Bronx, and thanks to a $3 million federal grant, will be replicated to Brooklyn and Manhattan, and eventually Buffalo. As I’ve written previously, the Affordable Care Act (ACA) offers funding for pilot programs to test ways of reforming the medical malpractice system.

Judge-directed negotiation works because it “bypasses years of court battles, limiting legal costs while providing injured patients with compensation that is likely to be less than a jury would award but can be paid out years earlier, without lengthy appeals,” according to the Times. New York City public hospitals report that the switch to judge-directed negotiation, along with some other changes, has saved $66 million in malpractice costs per year. AHRQ estimates that implementing the system nationally could save more than $1 billion annually.

In Mississippi where I practice, we implemented tort reform in 2004, to which Governor Haley Barbour (R) attributes much of the economic development we’ve seen over the last seven years. Some of the reforms included:

• Changing rules of venue to prevent abusive court-shopping
• Removing "joint and several liability" rules
• Protecting sellers of products as long as they believe the product is being used as approved
• Putting caps on punitive damages
• Putting caps on non-economic damages
• Requiring the plaintiff's attorney to show that one qualified expert finds a reasonable basis for the case, or has attempted to contact three experts for a consultation (whether or not they agree to do the consult)

Agree with Barbour’s positive economic assessment or not, the laws have created definite “wins” for our state’s physicians and health care system. The number of malpractice claims dropped 91 percent between 2004 and 2009, while the largest liability insurer dropped its premiums 42 percent between those years. We need to see those kinds of results nationwide.

However, passing reforms like the ones in Mississippi would be challenging, if not impossible, in a lot of other states. Although it’s unclear if judge-directed negotiation can have quite the same results as the reforms in Mississippi, it may be easier to implement nationwide and, thus, be able to provide more relief. We’ll have to see how the scale-up of the program goes.

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