Like most of you, I do the majority of my CME online, my most recent project was the “Patient Safety and Risk Management” ACC Self-Assessment Program (SAP). It was a 12-hour offering that I found unique and thought-provoking, forcing me to reconsider several recent, disparate articles I had perused regarding medical malpractice and begging the question, “where did tort reform go?”

The Patient Safety and Risk Management SAP was actually quite good, the majority being case-based vignettes followed by legal viewpoint, malpractice carrier analysis and then a synopsis of the concepts regarding risk management. I envisioned myself in many of those cases (for I had been there), trapped by the non-compliant patient, doing “defensive medicine” testing beyond that medically required, held responsible for the thoughtless act of some other in the patients’ medical team.

It led me to consider where tort reform is today, that effort to bridle that most crass fee-for-service legal process where you are held responsible for the outcome of the non-compliant hypertensive smoking diabetic with atrial fibrillation who bleeds on warfarin having no international normalized ratio measurement in three months, just as you are held responsible for the stroke that occurred when you stopped the warfarin for non-compliance?

Zeke Emanuel and colleagues have posited a “safe harbor” type of solution in which the practice of guidelines-based care would effectively keep you out of trouble.  Given the issues that currently exist with the adoption of guidelines-based care, I think this is difficult to envision.

Others tout the success of economic caps on awards as a positive effect by reducing lawsuits while others point out that there was no reduction in defensive medicine practices by those very same caps.

A recent Jackson Healthcare survey claimed the tort issue to be a uniquely American private practice issue, analogous to the claims made about our payment system.

The truth is there is no single, good answer to tort reform, for like payment reform, it is an adaptive problem, one in which simple technical solutions are doomed to fail, the real solution requiring a paradigm shift in our cultural fabric.

The question is: do we have the courage to make such as change?

I would love to hear your thoughts.

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