Following up on a recommendation in the Hsiao report of 2010, the Shumlin Administration has released a study on the pros and cons of a “no fault” medical malpractice 
system. Hsiao had recommended looking to New Zealand for a model, but according to VT Digger’s report on the study, the recommended system, New Zealand, can’t really be imported because it covers more than just medical malpractice.The malpractice report is full of citations of studies about the impact/non-impact of caps on damages and awards, surveys of physicians, analysis of hospital costs.
Sadly, they didn’t evaluate what might happen if a Vermont law passed in 1991 would finally be allowed to be implemented!
Yes, there is ALREADY a law on the books in Vermont that could help reduce defensive medicine, while NOT diminishing the rights of the aggrieved to pursue claims through the malpractice system.
Act 160 of the 1991 session included a “contingent amendment” to Title 12, Ch 215 that states: “(b) Practice guidelines duly established by professional organizations of health care providers, by licensed hospitals, or by quality assurance programs recognized by state law shall be admissible as evidence on the question of whether the respondent met or failed to meet the applicable standard of care.”
I’ll repeat: this is on the books now, but has not been implemented because it was amended on the Senate Floor by single payer advocates to set the implementation date as contingent upon “universal access to health care.” Which was not defined, of course. It was made “contingent” with strong support from the plaintiffs bar, even though this language in no way caps damages or awards, nor does it hinder anyone’s access to the courts. It simply encourages providers to follow practice guidelines and gives them a modicum of protection if they do. If the guideline is wrongly applied, inappropriate or the patient is harmed, the existing malpractice rules still apply.
The champion of this 1991 amendment was Sen. David Wolk of Rutland. It was supported by the Medical Society, the Administration, businesses and others. Basically, the effect of this amendment is that in a malpractice case, if a practitioner demonstrates that s/he was following “duly established” practice guidelines, that would be an affirmative defense against the suit. The plaintiff would have the right to demonstrate why the application of that practice guideline was inappropriate.
But at least practitioners have a reason for following practice guidelines (which for example might indicate an MRI or c-section was not indicated by the facts known at the time). Right now, practice guidelines are ignored because they provide no protection whatsoever to patient or practitioner. I was told by the former chief of surgery at FAHC that he was having trouble compelling employed physicians at FAHC to follow guidelines (thereby reducing the incidence of unnecessary tests and procedures) because they told him guidelines wouldn’t help them if they were sued. He told me “I could get them to follow guidelines if this fear were removed.”
Isn’t it about time we dealt with this? Are we going to let the plaintiff’s bar stop a common sense change like this from happening?
All that is required is to amend the implementation date for this ancient amendment to read “July 1, 2012.” A one line piece of legislation. Maybe it could be part of H. 559, the “Omnibus Reform Bill” for 2012? Or S. 208, the Illuzzi/Miller alternative? Or, as so many things are, attached to the Budget Bill?
