Find alternatives to medical suits

Doctors and the medical malpractice lawyers who sue them have been at each other’s throats for decades, further burdening a medical profession already struggling to manage escalating costs and a shortage of doctors.

Any improvement in the medical malpractice climate would be welcome. The good news: The Legislature has passed House Bill 1967, which aims at handling potential cases of medical malpractice with civility and with the goal of conciliation. Representatives of both plaintiffs’ attorneys and the medical profession have supported the measure.

The bill would revamp the state "medical claims conciliation" panels, which were authorized by lawmakers in 1976 to individually handle malpractice claims. They would be called "medical inquiry and conciliation" panels, to reflect the goal to "conduct proceedings in a non-adversarial manner consistent with the primary purpose of conciliation." The panels would focus less on potential litigation and more on inquiry, conciliation and settlement. Obviously, this will be easier said than done. There will continue to be a need for malpractice court cases. But with advocates on both sides willing to reduce them, there’s hope.

Dr. Kelley Withy, a Mililani family physician, says such a change of attitude could play an important role in dealing with the increasing shortage of physicians in the islands. Hawaii has the equivalent of 2,860 full-time physicians caring for civilians but needs 3,500, according to federal guidelines. That is compounded by the state’s shortage of nurses and physician assistants, says Withy, who headed this year’s Hawaii Physician Workforce Assessment team.

"If we do not take action now," she told legislators, "by 2020 we may be 1,600 physicians short of what is needed and we will all find it very difficult to receive appropriate medical care."

Plaintiff and defense attorneys in medical malpractice cases began meeting with doctors in late 2010 at the University of Hawaii’s John A. Burns School of Medicine in search of resolving their differences. Changes in the law to establish conciliation panels were supported by both sides. Robert Toyofuku, representing plaintiffs attorneys, said the changes will make the process of dealing with medical treatment that leads to patient injuries or deaths "more efficient and less intimidating for both patients and doctors, while reducing unintended consequences created by the current adversarial process."

The move toward actual conciliation would be a significant change from what too often has been a climate of fierce accusation and denial. Still, it’s a big change. It’s understandable that there will be skeptics.

David Karlen of the state Department of Commerce and Consumer Affairs’ Office of Administrative Hearings pointed out to legislators that the legislation makes no provision for training present panel members or finding new panelists "who are attuned to conciliation" rather than litigation. Making the shift will be crucial for DCCA, which administers the program.

Karlen expressed concern that proponents of the change appear "to rely on a mere hope that volunteerism will somehow materialize to take care of this crucial factor." He expressed concern that such recruitment and training "cannot be left to an unorganized hope that somehow it will all work out."

The new law will take effect at the beginning of next year, which Karlen hopes will be enough time to find panel members who will be "interested in the conciliation process." Time will tell. But it will be worth the effort.