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September 17, 2020

Another Medical Malpractice Crisis?Try Something Different

Author Affiliations
  • 1School of Law and Dell Medical School, The University of Texas at Austin
  • 2Boothman Consulting Group, LLC, Ann Arbor, Michigan
  • 3Department of Surgery, University of Michigan Medical School, Ann Arbor
  • 4Department of Medicine, Department of Bioethics and Humanities, University of Washington, Seattle
JAMA. 2020;324(14):1395-1396. doi:10.1001/jama.2020.16557

With hospitalizations related to coronavirus disease 2019 (COVID-19) soaring, revenue from elective procedures plummeting, and health professionals experiencing unprecedented stress, the pandemic is challenging the US health care system in unimaginable ways. Will there be further consequences? Another medical malpractice crisis is a growing possibility.

Physicians, hospitals, and nursing homes, along with manufacturers of vaccines and therapeutics, are apprehensive about potential liability during the pandemic.1 Some health care organizations are asking patients to acknowledge and explicitly assume COVID-19 risks before receiving care; others have requested and sometimes have obtained legal immunity from tort liability through state legislation or executive order.1

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    1 Comment for this article
    Try Something Different? Why Not Health Courts?
    Edward Volpintesta, MD | retired general practitioner
    In this interesting article I was surprised that no mention was made of special health courts that would deal with litigation in so-called administrative systems similar to workers comp.

    The ideas for decreasing malpractice suits mentioned in the article had merit but they wouldn’t decrease by much the misery and anxiety experienced by physicians as they wait for resolution of the suits as they wind their way through the courts. Too little attention was devoted to the effects that litigation has on physicians’ mental health.

    While undergoing litigation, doctors are concerned about possible harm to
    their reputations. This is a serious emotionally-draining distraction that can have serious consequences including anxiety, depression, excess alcohol consumption, and self-medication with psychotropics, all of which can affect their medical judgment and the way they interact and treat patients. They can disrupt their personal relationships resulting in broken marriages, problems with children and associates, and long-standing friendships.

    Clearly, medical lawsuits are physicians’ worse nightmares. For that reason they often order more tests and procedures and consultations than necessary in hopes of quashing allegations of negligence. This is called defensive medicine and raises the cost of healthcare immeasurably. But this still is no guarantee against being sued, for unwarranted suits still occur—and even though most of are dismissed in in the meantime physicians endure years of misery.

    Be this all as it may, special health courts can compensate patients fairly and spare doctors the humiliation and stress of litigation; but it is rare to see them disused in the medical or the lay media.

    Try something different? Why not health courts?