Resolving Medical Malpractice Claims in the Medicare Program: Can It Be Done?

There is increasing interest in an integrated approach to patient safety and medical liability among policymakers. We have proposed Medicareled malpractice reform that would provide Medicare beneficiaries with better safety, improved communication in the event of error, preservation of therapeutic relationships, timely settlement, and fair compensation at a lower administrative cost. Disputes in the reformed system would be adjudicated by Medicare\u27s existing administrative appeals system that would work together with Medicare\u27s quality improvement regulation and payment policy to reduce errors and compensate injured patients. Despite the laudable rationale for Medicare-led malpractice reform, important issues attend the constitutional and statutory authority for such reform. The first issue, assuming legal authority exists, is the feasibility of Medicare-led malpractice reform. Quite simply, does the Medicare program, with the primary purpose of providing acute care services to the elderly, severely disabled, and people with end stage renal disease, have the requisite infrastructure to launch such reform without compromising its central functions? Second, does the federal Congress and/or the Executive Branch, in our constitutional scheme, have the requisite authority to establish Medicare-led malpractice reform especially when states have and always have had the authority to adjudicate medical malpractice in the common law tort system? This article explores these critical issues for Medicare-led malpractice reform. First, this article explores the infrastructure of the Medicare program and how it could accommodate Medicare-led malpractice reform without compromising its central mission. Second, the article briefly describes the elements of a Medicare malpractice adjudication and compensation system for Medicare beneficiaries. Third, the article explores the legal authority for a federal benefits program to supplant a function performed by state common law of torts in the civil judiciary and generally with jury trials. Finally, the article concludes with an assessment of the legal and practical feasibility of Medicare-led malpractice reform