Patient Compensation Without Litigation: A Promising Development

In 1977, Bernzweig (1) eloquently outlined the severedysfunction in the United States ’ fault and no-fault in-jury compensation systems. Although recent legislation seeks to promote patient safety through confidential error reporting (2), the dysfunction persists, and initiatives to compensate injured patients are lacking (3). Advocates of “reform ” focus on laws to limit medical liability insurance premiums and costs of the practice of defensive medicine. Common statutory changes, which neglect the predica-ment of injured patients, are caps on payments for pain and suffering. These caps range about 6-fold across the 50 states, and California’s cap, fixed at $250 000 in 1975, has never been adjusted for inflation. One must question the equity of such wide-ranging limits (4). Meaningful reform must recognize 4 underlying issues. First, many patients (and at times their family members) are injured (5); how-ever, as few as 1 in 50 patients injured by medical negli-gence ever files a claim (6) and fewer receive compensation. Second, expert disagreement about the cause of adverse medical events is pervasive (7), a reality that will challenge any form of adjudication model, judicial or administrative. Third, litigation, liability insurance, and reporting systems (such as the National Practitioner Data Bank) create disin-centives for providers of care to admit error. Fourth, liti-gation (8), and even no-fault injury compensation pro-grams (9), can be expensive, unpleasant, and fraught with ill will and delays. In this issue, Kachalia and colleagues (10) add to our understanding of new models for compensating patients injured by medical error. The University of Michigan Health System (UMHS) identifies errors, discloses them to the injured patients, and offers financial compensation, all without the involvement of the legislature, Congress, courts, or administrative agencies and with greatly reduced expenses for attorneys. Models for routine, voluntary dis-closure of medical adverse events are not new. Three de-cades ago, Jeffrey O’Connell, the well-known author of automobile accident compensation reform (11), proposed a plan to prompt physicians and hospitals to identify errors and approach the injured patient with an unsolicited early offer of compensation (12). More than 10 years ago i