Jonathan Cohn imagines a better sort of malpractice reform:
The key is finding ways to fix the malpractice system so that it helps both physicians and the patients, rather than one at the expense of the other. And there are several promising possibilities for achieving that. One is to have doctors report medical errors to hospital administrators, who would then notify patients and begin negotiations. A version of this "sorry works" model is in place at the University of Michigan Health System, where it has reduced lawsuits, cut litigation costs and sped the resolution of cases.
Another idea is to create a no-fault system, similar to the way workers' compensation works, or to channel most malpractice cases through special "health courts" that would come before jury trials. (The Scandinavian countries and New Zealand have such systems in place.) One other proposal--perhaps the most intriguing--is to tie malpractice to quality incentives, by offering some sort of legal protection to physicians who demonstrate they have abided by accepted clinical guidelines. Not only might such a scheme cut down on frivolous lawsuits. It might also improve the quality of care--which would, in theory, reduce the incidence of actual malpractice.