What happens when you end medical malpractice lawsuits?
The Danish health system’s treatment of negligence issues offers lessons for policymakers in the United States, where medical harm remains widespread and the mechanisms for addressing it are often cumbersome and adversarial. The Danes’ primary focus is on helping patients who have been hurt by the health care system. Data helps flag offenders.
The U.S. system for compensating injured patients – medical malpractice lawsuits – effectively shuts out patients when the potential damages are small. Proving negligence, the usual standard for winning compensation, is difficult. There are scant incentives for doctors and hospitals to apologize, reveal details about what happened, or report errors that might unveil a pattern.
Denmark offers a radically different alternative. Alternative responses to patient harm have been tried on a smaller scale. Virginia, for example, has a program designed to compensate for severe neurological childbirth injuries that is similar in some ways to the Danish system.
Common to all these programs is a commitment to provide information and compensation to patients regardless of whether negligence is involved. That lowers the bar of entry for patients and doesn’t pit doctors against them, enabling providers to be open about what happened.
Denmark’s compensation program has been in place since 1992, replacing a lawsuit-based approach much like that in the U.S. Today, medical injury claims aren’t handled by the Danish court system but by medical and legal experts who review cases at no charge to patients. Patients get answers and can participate in the process whether or not they ultimately receive a monetary award.
Filing a claim is free. Patients are assigned a caseworker to shepherd them through the process. The hospital or doctor is required to file a detailed response, which patients may rebut. Patients have access to their complete medical record and a detailed explanation of the medical reviewers’ decisions. All of this is available for patients and their families through an online portal, which alerts them when there are developments in their claims process.
Overall, about one in three patients who file a claim is compensated. The minimum eligible claim is under $2,000, and the average paid out is $30,000, or about 15 percent of the typical amount awarded in lawsuits against U.S. doctors.
However, it’s estimated that more than seven times as many claims are filed per capita in Denmark, and about four times as many patients per capita receive some award. A claim for a few thousand dollars would not be worth it in the U.S. system because of the high cost of pursuing lawsuits.
The Danish health care system helps patients file medical injury claims by providing an independent nurse with legal training to assist at every hospital. Danish doctors are known to file compensation claims on behalf of patients, which occurs in about 10 percent of the cases.
The Danish system is not perfect. Although the data collected from claims is freely shared with researchers, injury and error rates are not published so that patients could use them to select providers. By design, there is not communication between the claims and disciplinary systems.
Proposed alternatives to the U.S. medical malpractice system have been strongly opposed by some powerful interest groups, most prominently trial lawyers.