Medical liability reform urged. (Strategies Offered).

NEW ORLEANS -- A complete overhaul of the medical justice system and a no-fault insurance plan were among the possible solutions to the medical liability insurance crisis suggested by speakers at the annual meeting of the American College of Obstetricians and Gynecologists.

"I am genuinely horrified by what my profession has done to your profession," said Philip K. Howard, J.D., vice-chair of the law firm Covington and Burling and founder of the Common Good, a bipartisan coalition dedicated to legal reform.

Mr. Howard suggested the creation of a new system of medical justice, the role of which would be to balance patient rights with the interests of the common good. "For decades everyone has talked about justice as a matter of the rights of the victim, and justice has been played out at the intersection of personal tragedy and personal greed," he said. But "the task of justice in a free and functioning society is to reliably balance the predicament of the individual with the interests of the common good."

Mr. Howard spearheaded a petition signed by 70 prominent health care leaders calling on Congress to create a new medical justice system. Part of it, he suggested, would be the inclusion of judgments by medical experts.

"No judge alive today, or few, have the expertise needed, even if they were willing to make the judgment, to distinguish between good medical care and bad medical care. It's too complicated. What you do is too sophisticated," he told physicians at the meeting. "In other parts of the world, there are special courts and special tribunals for such complicated matters, and that is what's needed in health care as well," he said.

A different solution was suggested by another lawyer, Jeffrey O'Connell, J.D., professor of law at the University of Virginia, Charlottesville, who described his Early Offers reform plan as a type of no-fault insurance. Under the plan, within 120 days of a medical complaint, physicians who believe they might be liable would have the option of making an offer to the plaintiff. The offer would be covered by the physician's malpractice insurance, and the amount of the offer would be based on the plaintiff's net economic loss, excluding what might have already been covered by the plaintiff's own insurance. If an offer were made, the plaintiff would be obliged by law to accept it--unless he could prove that the physician was guilty of gross criminal negligence--and would thereby foreclose his right to pursue any future lawsuit concerning the complaint.

"We know that in the vast majority of cases a patient would never be able to prove [criminal negligence]. He might be able to prove negligence, but he wouldn't be able to prove the doctor was a criminal. Very few doctors are guilty of criminal conduct; these are all mistakes," Mr. O'Connell said.