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Fixing the Medical Malpractice Problem

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Thesis binders used to be sold in the University of Miami bookstore. These are sometimes called “spring binders” and you can temporarily bind a document without difficult to ease reading. This is especially handy if you don’t like to read on the screen. For a while now, I have been looking for these binders in A4 size. This may come as a shock to most Americans, but outside the United States, letter-sized paper is not 8 1/2 x 11, but A4 size. I finally found a German company with a U.K. website that sells the binders (they call them “clamp binders”, or more properly, Klemmbinder). Unfortunately, the company refused to ship the binders to the United States because of insurance and liability reasons. They are afraid of being dragged into a U.S. courtroom.

Since I’ve been single (see my post Batchin’ It) I haven’t gotten around to getting medical insurance. So I called BUPA, which is one of the U.K.’s largest insurers. They called me back immediately (this is a clear sign of a buyer’s market—if you don’t believe me start making inquiries about commercial real estate) and offered a very competitive policy. One thing though—there would be a U.S. exclusion. In other words, if I were in the United States temporarily, say, on vacation, they would cover emergency care, but other than that, please come back to Europe. Or go to South America. Or the Middle East. “ABA”:  Anywhere but America.

So, how are Klemmbinders linked to health insurance?  And what does this have to do with “fixing the medical malpractice problem”? The first step is realizing that the American legal system, insofar as it attempts to address the issue of recovery in tort, is broken. Americans don’t believe that it is, but the world is starting to vote with its feet (to borrow a phrase from Milton Friedman) and avoid American markets with their inevitable legal entanglements.

In the early part of the 20th century, a worker who was injured on the job had almost no recourse. In order to receive compensation for his injuries, he had to prove that his employer was liable. In states that followed contributory negligence rules (that is, instead of comparative negligence) any fault at all on the part of the employee would prevent him from recovering. Eventually a drastic change was adopted, and eventually became law in all fifty states. It would no longer be necessary for the employee to prove his employer’s negligence. However, the amount of his recovery, that is, the amount of the compensation would be greatly reduced. Compensation would be based on schedules that were agreed to by the legislature in advance.

The system has worked well for over a hundred years. By taking liability issues off the table, workers (usually) receive quick and certain compensation. This system should be adopted for injuries sustained by patients while receiving medical care.

In exchange for removing liability issues from the table, patients would get certain and quick compensation for their injuries. There would be no or little need for personal injury lawyers—or defense lawyers, for that matter. Moreover, what I am proposing is a system that has functioned well for a hundred years. The system is not new. It works. One can, of course, criticize worker’s compensation systems. Or say, for example, that Illinois’ system is better than Florida’s. Or that the system can be tweaked or improved. Of course the system can be improved. But by taking compensation issues out of the “tort courts” everyone’s costs will go down to the benefit of both doctors and patients.

And then, as our system changes, it will be easier to buy Klemmbinders in the United States.

Written by mokane

May 11, 2009 at 10:38 am

Posted in Uncategorized

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