Montezuma's treasure

Tena-Tamayo and Sotelo report in this issue (p 528) on Mexico's conciliation-arbitration system for handling malpractice disputes. Their report reminds us that finding the perfect medical liability system is like panning for gold—it is a global endeavor with a low chance of success finding a mineral that fluctuates widely in value depending on time and place. What works well in one locale may not in another.

In 1996, Mexico's president established Conamed in the Ministry of Health to arbitrate malpractice cases. Conamed is sponsored by the government, provides expert opinion on negligence, and referees malpractice disputes. Both parties must consent to participate, and if agreement is reached, the case cannot be taken to the civil courts. Averaging 5000 cases per year, Conamed has resolved three fourths of its cases within 48 hours, and more than 90% of claims conclude without either party proceeding to court.

Have the Mexicans stumbled onto Montezuma's gold with a system for the speedy, inexpensive, and effective resolution of medical malpractice disputes? Sadly, no. What works well in Mexico has not been as effective in other jurisdictions. The reason is this: Each country's health care system, as well as its legal system, is a reflection of its own unique culture. For instance, while the frequency of suits in the United States has remained steady, the costs of claims have risen significantly, driven largely by the rising and often uncovered health care costs of patients with unwanted outcomes.1 A key predictor of payment is the plaintiff's degree of disability rather than the presence of negligence.2

Health care in Mexico is a public affair, with about half of Mexicans covered through government social security programs and another third receiving services through public facilities.3 In the US, while government programs represent roughly half of health care spending, they cover only about one quarter of the population, with another 25% having no or inadequate health insurance.4 Americans have conflicted views about the role of government in the health care or civil justice systems. As an example, it is unlikely that a US president could single-handedly decree a major change in the medical liability system—the Congress and the states would have something to say about that.

More significantly, different cultures have different perspectives on justice and deferring to authority. For example, a tribunal of doctors may successfully decide negligence in Germany, Mexico, or Sweden, but it is less likely that American patients would be as willing to relinquish their “day in court” or defer to “experts.” Indeed, the right to a jury trial is protected by the Seventh Amendment under the Bill of Rights, as well as by the constitutions of most states.

The Mexican approach represents what is known as alternative dispute resolution (ADR). A number of ADR strategies have been tried in the US and other countries to resolve malpractice disputes short of trial, including negotiation services, mediation, arbitration, and pretrial screening panels.5 Since 1986, Wisconsin has required malpractice claimants to go through mediation, where cases are heard by a panel consisting of a physician, a lawyer, and a public member.6 Patient-claimant and physician-defendant present their stories; no expert testimony is allowed. Panel opinions are not admissible in court. Even so, panels have been viewed as having a positive impact, with 10% of cases settling at the panel level, 43% having no settlement or filing in the courts before the statute of limitations expired, and 19% indicating that mediation served a useful purpose. Only 29% felt that mediation served no useful purpose.

Since the 1970s, Kaiser Permanente has required insureds to submit to binding arbitration to resolve liability disputes. While the California Supreme Court has ruled that a contractual requirement to arbitrate claims does not violate one's constitutional right to trial by jury,7 more recent rulings question whether such a process can be administered fairly.8 Kaiser's experience suggests that formal arbitration using expert witness testimony can be nearly as expensive and protracted as a trial.

Some argue that medical liability conflicts should be moved from the civil justice system to a compensable event (no-fault) approach, much like workers' compensation. Advocates contend that administrative costs drop from 60% in the current system to 20-30% under no-fault, leaving more for injured patients. Opponents counter that the expense of no-fault is unsustainable, given that there are nearly eight times more injuries due to negligence than there are claims under the current system.2 New Zealand has found no-fault to be very expensive and narrowed its definition of compensable events.9

We each seek our pot of gold at the end of the rainbow: Patients search for perfect medical outcomes and doctors want a malpractice system that is affordable, less adversarial, and fair. In the mean-time, doctors should use strategies to improve outcomes and reduce risks (see box).10