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Judgments in civil actions are supposed to make the parties whole again. For economic damages, that is easily done. A wrecked car can be replaced with a new one.
Non-economic damages are an entirely different matter. All a jury can do is give someone money. It can’t restore sight, relieve pain or bring a loved one back to life. It can make someone rich, but not whole.
Regardless of what changes are made to litigation rules, there is one other change that must be made within the medical profession. Doctors must learn to communicate better with their patients.
Just as attorneys need the skill of extracting answers out of a reluctant, belligerent or forgetful witness, a doctor needs to obtain complete information from a patient in order to make an accurate diagnosis. Sure, charts and instruments help, but relying on them is like being limited to written discovery. It doesn’t give you the complete picture.
The National Board of Medical Examiners wants to make a clinical skills test part of its licensing procedure in 2004. The test would require the prospective doctors to talk to actors pretending to be patients and get enough information to make accurate diagnoses. As Dr. Peter V. Scoles, senior vice-president of the medical examiners board, told the Associated Press, “According to some data, 85 percent of medical malpractice cases are based on communication issues.”
The test costs about $1000, plus travel expenses, which has led the AMA to oppose its use. Given what doctors are paying for med mal insurance, the cost of the test seems reasonable to me. If what Scoles says is true, it would be a much more sensible way to lower premiums than tinkering with liability caps.
It would also ensure that a lot more patients would remain whole, not just well-compensated.