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Embarking on a Research Journey


Most of my practice as a litigator requires me to examine the past. This project gives me a refreshing opportunity to create, to contribute new ideas to my practice field. 

The news came in Bonn following a three-day selection process and a dinner-cruise on the Rhine. I returned to my hotel room to find an envelope. In it, contained a letter from the Alexander von Humboldt Foundation inviting me to serve as a German Chancellor Research Fellow.

And so, I embark on a yearlong research journey to conduct a comparative study of medical negligence. The goal: to improve prevention, extrajudicial resolution, and adjudication of medical malpractice claims in the United States using Germany as a model.

Why Germany?

Germany has the oldest social healthcare system in the world, dating back to 1883, and like the Patient Protection and Affordable Care Act (“PPACA”), it is a compulsory, multi-payer system. Germany’s Bismarkian model insures roughly 85% of the population through a public health insurance program known as Gesetzliche Krankenversicherung. This income-based program offers no deductibles, low co-pays, low-cost medical procedures with uniform prices, and out-of-pocket limits. Sound familiar yet? Germany’s long history of providing quality social healthcare has informed their medical risk management practices, which seek to reduce medical errors and provide efficient and just resolution of medical malpractice claims, the same goals set forth by Congress in the PPACA.

The Unites States and the PPACA

Other than setting forth broad policy goals of reducing medical negligence, encouraging efficient resolution of claims, and providing affordable access to medical liability insurance, all while maintaining an injured patient’s right to seek redress in court, the PPACA is largely silent on issues of medical malpractice. Although the PPACA developed grants for pilot programs that achieve the broad policy goals above, the question of how insuring 32 million additional patients will affect medical malpractice is largely unanswered.

Despite traditional tort reform measures, including damages caps and limiting access to courts, doctors in the U.S. still report practicing defensive medicine in fear of lawsuits and high malpractice insurance premiums. Even in a high defensive medicine climate, a recent Johns Hopkins study found that medical errors are the third-leading cause of death in the U.S. To make matters worse, a 2006 article in the New England Journal of Medicine reported that courts reach the wrong result in medical malpractice cases 25% of the time. Despite common goals of patient safety and fair resolution of medical negligence claims, our current systems for preventing and resolving claims are largely inefficient and often ineffective. An in-depth look at the German systems for preventing, resolving, and adjudicating medical malpractice claims can provide valuable guidance to healthcare providers, risk managers, medical malpractice insurers, patients, legislators, attorneys, and courts.

Stay-Tuned

My research will explore the effectiveness of preventive measures and resolution methods employed by the German government, healthcare providers, and courts, including a look at medical error reporting systems, medical record management systems, disclosure and compensation laws, discipline-specific shared physician databases, safe-harbor provisions, free arbitration, expert panels, legal burden shifting, and medical consultants for fact-finders in litigation.

Most of my practice as a litigator requires me to examine the past. This project gives me a refreshing opportunity to create, to contribute new ideas to my practice field. I begin language training in Bonn in August, and after a month-long introductory meeting in Bonn and Berlin, I‘ll officially begin my research in November. My home base will be in Passau, Germany, but I’ll travel throughout the country to speak to and learn from healthcare providers, risk mangers, patients, attorneys, judges, and government representatives. 

Gratitude

I want to thank the Alexander von Humboldt Foundation for giving me this opportunity, Universität Passau Faculty of Common Law, specifically Professor Jörg Fedtke, for hosting my research, and my husband for his never-ending support and for agreeing to move to Germany with our six-month old son. Last, but not least, I’m grateful to my law firm, Burglass Tankersley, for supporting me, without hesitation, in this endeavor.

MND