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Comment and Controversy

Many liability cases are result of poor medical care

September 2009 · Vol. 21, No. 09
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I just finished reading Dr. Ogburn’s thoughts on how to reform the medical malpractice system so that it works for everyone. Here’s my problem with his proposal to offer an individual policy for each gestation: As an “inhouse” reviewer for a major medical malpractice insurer and a consultant for many defense law firms, I am overwhelmed by the sheer number of med-mal cases out there—and many of them are legitimate.

When I began to review cases, back in 2001, I expected the job to involve mostly frivolous suits and money-hungry lawyers. I was so wrong. Many of the cases I have reviewed are more than justified, and many of them are “bad baby” cases. I can certainly sympathize with the parents of these unfortunate children.

What is needed is better training, with more hours on call to follow the evolution of disease and course of labor. The idea of being off so many nights and working a shorter day in ObGyn just doesn’t cut it. Residents are young; they can handle the workload. We need to spend more time with patients and learn more about continuity of care. Then, and only then, will there be fewer mistakes, fewer cases, and lower settlements.

The idea of the patient taking out an individual policy, as with airplane insurance, is not new. It was suggested years ago but never made it to the “big screen.” What we need are better, smarter, devoted physicians who care more about their patients and less about time off, vacations, how much they’ll make, and how quickly they’ll make it.

Barry Kramer, MD
Bay Shore, NY

Dr. Ogburn responds: We must do better than the current system performs

Dr. Kramer raises some important points:

Medical negligence is happening and harming our patients. I agree. This sad fact is as true today as it was when we reviewed perinatal closed claims in the mid-1980s.1 We found that payments were made 50% of the time when there was no negligence; when there was negligence, payments were made 90% of the time. The current system requires someone to have been negligent for the infant to get financial help. This leads to expensive (and wasteful) “discovery” and “expert testimony” designed to convince a jury, not to get at the truth. The one person who is not to blame is the infant. Under the 3MLI system, the infant’s needs would be covered without the need to prove fault. This fact alone makes 3MLI superior to the current tort-based system.

Physicians need to spend more time being trained and more time with their patients. Again, I agree with Dr. Kramer. The current system of health-care education and practice is not designed for overall efficiency or for the well-being of our patients. Some recent “improvements” are making things worse. Physicians and nurses spend more time trying to document (based on ever increasing rules and regulations) than they can possibly spend at the bedside. Physicians spend more CME time and money to learn the latest “new, improved” coding changes than they spend on any real medical education. The 3MLI will at least require each physician to participate in a detailed review of the case of a poor outcome with a panel of experts so that the case can go into the database of all poor outcomes and the physician can receive specific instructions on practice improvements, if needed (or be removed from 3MLI eligibility, if need be).

Patients taking out individual policies is not new. What is new is that, under 3MLI, the physician or provider would pay for the policy, not the patient. I want an insurance policy that will take care of my patient and her infant if they need it, no matter who is or is not at fault. That is what I want; that is what my patients deserve.

3MLI is designed to help solve some of the problems that Dr. Kramer raises even as it helps our injured patients. It can be instituted without tort reform legislation. For the sake of our patients, we must do better than the current medical-liability system does.


1. Ogburn PL, Jr, Julian TM, Brooker DC, et al. Perinatal medical negligence closed claims from the St. Paul Company, 1980–1982. J Reprod Med. 1988;33:608-611.

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