Florida requires that medical error data that the state currently collects be publicly disclosed at the facility level.64 • The Medicare Payment Advisory Commission has recommended the increased use of autopsies to learn more about medical errors.65 Options include reinstating the mandate for minimum hospital autopsy rates (which was repealed in 1970) or making a minimum rate a condition of participation in Medicare. As yet, there is no empirical research analyzing the efficacy of any of these proposals in reducing malpractice premiums or medical errors. In many states, regulatory measures such as these have been offered as counterproposals to tort reform bills. G. Private-sector initiatives altering providers’ responses to medical errors and lawsuits Some of the more innovative medical institutions and physician insurers are experimenting with novel ways of reducing their malpractice costs. These approaches are similar in both philosophy and practice to the no-fault model envisioned by the Institute of Medicine, yet take place within the framework of the tort system. As such, legislatures may be able to encourage these private efforts without major changes to tort law. • “Apology” programs are based on the premise that injured patients are often motivated to sue more by a desire for full disclosure and assurance of future corrective measures than by hopes of winning a “jackpot” award. In these programs, the doctor or hospital apologizes for the injury and offers a modest amount of compensation to dissuade the patient from filing suit. These programs can be facilitated by legislation prohibiting the introduction of such “benevolent gestures” as evidence against the provider in any suit the patient may choose to file at a later time.66 • Voluntary resolution programs are intended to lower the cost of defending lawsuits and to use 11 claim information to develop patient safety measures. The institution or insurer creates an internal panel of experts to screen claims and immediately initiates settlement offers when the provider’s conduct is deemed indefensible. Laws requiring disclosure to the patient of medical errors, such as the one recently enacted by Pennsylvania, might encourage adoption of this approach.67 The “apology model” has been followed by the Veterans Affairs hospital in Lexington, Kentucky68 and by COPIC, the physician insurer in Colorado.69 The voluntary resolution model has been used by the Los Angeles County70 and University of Michigan71 medical centers. Anecdotal accounts suggest that providers’ claims costs are reduced by these programs but, as yet, there is no empirical research on costs or benefits either to providers or to patients. Some experts believe that programs like these constitute virtual no-fault compensation systems. In addition to showing promise in lowering providers’ costs, if the programs succeed in reducing providers’ fear of lawsuits and feed back information that facilitates the development of patient safety measures, the goals of the no-fault proposals could be achieved without dismantling the tort system. A caveat is that no one knows whether these initiatives result in injured patients relinquishing their legal rights to their detriment. One commentator has criticized some apology initiatives as offering “performative utterances” that don’t amount to repentance but are merely “an instrument of tort reform.”72 Conclusion Tort reforms are at the top of the medical malpractice legislative agenda because they are the preferred option for doctors and part of the political program of the party currently controlling the White House and Congress. Consumer advocates have reacted by demanding measures to improve patient safety, such as increased regulation of providers and reporting of medical errors. In many states, enactments have included some of both types of these measures. But, as this report demonstrates, tort reforms and increased provider regulation are only two of at least seven categories of policy options. Two options that have gained momentum but largely remained out of the public eye are subsidy programs and private sector programs that alter provider response. Subsidy programs have been popular with pragmatic legislators because, in political scientist Douglas Arnold’s terminology, they offer concentrated interest-group benefits but highly diffused costs to the public. Hospitals and insurers have applied ingenuity to adapt to a changing tort climate by experimenting with apology programs and voluntary resolution programs. These programs may represent the wave of the future and deserve more study. Tort reforms, and caps on damages in particular, are controversial because they shift injury costs onto victims without regard to the merits of the victim’s case or the physical and emotional consequences of the medical error. But other policy options are available that either do not shift costs (such as alternative dispute 12 resolution) or shift them less dramatically (such as subsidy programs); that make the tort system more efficient (such as certificate-of-merit laws, no-fault compensation systems, and enterprise liability) or curb its excesses (such as ranges for awarding non-pecuniary damages and tougher venue laws); or that are purely voluntary (such as mediation or apology programs). These measures offer potential win-win outcomes, but they have few