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Malpractice plan would limit trials

The Romney administration and the Harvard School of Public Health, seeking to address soaring health care costs driven by medical malpractice lawsuits, are working on a sweeping proposal to move malpractice claims out of state courts and into a new administrative framework much like the state's workers' compensation system.

Under the system envisioned by Robert Pozen, the governor's chief economic adviser, patients' malpractice claims would be resolved not by juries, but by tribunals of administrative law judges. Those panels would determine whether the harm suffered was avoidable and, if it was, they would award damages based on a compensation schedule set by state law.

The system would allow only limited appeals to the courts in cases involving fraud or where it is alleged that the tribunal did not follow its own rules, Pozen said yesterday.

Under the current system, medical malpractice claims are first screened by a special court-appointed tribunal and then are forwarded to state courts for jury trials if the tribunal finds that the evidence "properly supports a legitimate question of liability."

Pozen and other backers of the proposal say the current system is costly and unfair, because lawyers shy away from cases that don't promise big returns.

The proposal, which has won preliminary praise from some medical groups and has been criticized as radical by trial lawyers, goes well beyond caps on malpractice awards and other reform proposals before the Legislature. Pozen and a Harvard professor, Dr. Troyen Brennan, are developing a pilot program that would test the new system in the obstetrics departments of up to four Massachusetts hospitals.

Massachusetts would be the first state to launch such a program, although the idea has been floated elsewhere, including Florida and New York. There is currently no timetable for the pilot program, which would require an act of the Legislature.

Lawmakers would also have to approve a statewide implementation of the plan. Pozen said it is unlikely to go before the Legislature for several years, while the results of the pilot program are studied.

The administration has worked quietly on the idea for the last year and plans to announce it next week at a forum sponsored by the Boston Bar Association. Pozen said he considers it innovative, not radical.

"Right now, we have a system where a relatively small number of people who suffer medical injuries get very large awards and where the system takes a lot of time, has large administrative costs, and has the effect of encouraging doctors to hide errors," Pozen said.

"We want to have a different system where we have more people getting awards in smaller amounts," he said. "We want to reduce administrative delay and costs, while increasing medical safety and having people learn from their mistakes."

While medical malpractice insurance premiums have risen 77 percent in Massachusetts since 1998, Pozen said obstetrics is being targeted for the pilot program because its rates have risen the most.

On average, medical malpractice insurance premiums rose 20 percent this year in the state, but some obstetricians saw theirs rise 80 percent, Pozen said. The average yearly insurance premium for an obstetrician in Massachusetts is now $103,000, the 14th highest in the nation, according to a recent survey by the publication Medical Liability Monitor, which tracks malpractice insurance rates. Patients at hospitals involved in the pilot program would have to agree to participate in the new system or seek treatment elsewhere, Pozen said. Officials have not decided, however, whether universal participation in a statewide version of the program would be mandatory or whether doctors and hospitals could opt out, he said.

The president of the Massachusetts Medical Society, Dr. Thomas E. Sullivan, praised the concept yesterday, but also urged that other malpractice reforms urged by doctors' groups, such as capping malpractice awards, be implemented in the short term while systemic plans like Pozen's are studied.

Paul Wingle, a spokesman for the Massachusetts Hospital Association, said his group had not yet studied the proposal closely. But he said hospital leaders "welcome the administration's interest in the issue" because rising insurance costs are making it difficult for hospitals to retain talented doctors.

Lawyers were quick to criticize the idea yesterday, particularly its reliance on the state workers' compensation model, which has often been criticized as overly bureaucratic and inefficient.

"The last time I checked, no one was looking at the workers' compensation system as a great model of administrative dispute resolution," said Boston Bar Association president Renee Landers.

Although the bar association is neutral on the proposal, Landers, a career health care lawyer, said she is worried that taking away the fear of large, punitive jury awards would lessen the pressure on doctors and hospitals to avoid mistakes.

"The tort system, God knows, isn't perfect," she said. "But I do think it does have the capability to get the attention of organizations and individuals who need to change the way they do things."

Some lawyers and groups opposed to tort reform have also disputed whether jury trials are the cause of rising malpractice insurance costs, arguing that other factors are to blame, such as lax insurance regulation.

"States that have had effective insurance regulatory laws have not had these problems with skyrocketing rates," said Joanne Doroshow, president and executive director of the Center for Justice and Democracy, a group based in Washington, D.C., that has opposed many tort reform proposals.

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