Why Are Demonstrations of Comprehensive Malpractice Reform So (at All) Controversial

We are currently coming to the end of what I have described as the first malpractice crisis of the 21st century. Malpractice crises, which are defined by shrinking liability coverage and/or rising premiums, occur periodically. The insurance crisis that now seems to be ebbing was different in certain ways from its 20th century predecessors, but will almost certainly not be the last such period to arise. As interest in solving this crisis wanes for various reasons, we have to ask what we have learned from the last five years. In my opinion, this crisis has produced strong arguments for testing comprehensive approaches to medical liability that connect to quality, that connect to health insurance benefits, that connect to provider payment, that connect to the big professional and social issues in health care. Only in this way can we break through the conventional doctors-versus-lawyers battle lines that have defined malpractice reform for generations of physicians and politicians. Why do we have trouble taking this next step? Alice Gosfield hit the nail on the head when she commented that the trick is to change the system for the people who want and deserve change rather than for everyone at once. As Alice observed, why should the worst performing doctors get the benefit of an improved system of resolving disputes and compensating injured patients? Why not start with the best performing doctors? Why not start with people who want to change the rules and who can prove that they are likely to perform well in terms of quality, safety, and honesty under different rules? Proposals to demonstrate comprehensive malpractice reform follow from this insight. Funded demonstration projects are familiar in connection with complex, publicly financed care under Medicare and Medicaid, where the entity paying the bill sponsors and monitors experimental changes to existing rules. In malpractice policy, however, demonstration projects are far more controversial than one would expect. To understand why, let us explore liability reform during the most recent crisis period