Medical Liability Reform – The Continued Debate

by

Cheers From the Floor of Congress

Boos From the American Medical Association

Medical liability reform evokes strong emotions from both sides of the aisle and from many special interests groups.  Defensive medicine – or the practice of ordering tests and procedures that may not be needed to protect the doctor from the possibility of lawsuits – is one of the drivers that is helping to increase the cost of health care in the United States.  A survey of physicians in Massachusetts completed in 2008 found 83% practiced defensive medicine resulting in a cost of about 1.4 billion dollars over the 6-month survey period.  Actions taken by healthcare providers in response to malpractice pressures may also cause access to care issues.   A pregnant women living in a rural setting may have to travel long distances to have her baby as her local providers may no longer provided obstetric services because of rising malpractice premiums.

Medical liability reform has many components including caps on non-economic and punitive damages, abolition of collateral source, sliding scale for attorney’s contingent fees and periodic payment of future damages.   Proponents of reform feel these changes would help control out of control legal costs and help lower insurance costs.  Opponents of reform argue that the impact of malpractice torts are wildly exaggerated and that tort reform would restrict necessary consumer access to the courts.

Medical liability reform now

Medical liability reform needs to be considered as an add-on to the health care reform package.  The impact of defensive medicine, although difficult to measure, appears to have a substantial impact on the increasing cost of health care.  Physicians are concerned with how health care reform will affect their bottom line.  Including medical liability reform will help garner support from doctors that would welcome relief from a system they feed is unfair and financially and psychologically taxing.  Finally, bundling health and liability reform may help attract support from the Republican side of the aisle and this issue as traditionally belonged to them.



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5 Responses to “Medical Liability Reform – The Continued Debate”

  1. dauerbach100 Says:

    Medical liability reform is sorely needed. Patient and physician are currently developing a nearly adversarial relationship, given the fact that there is unspoken cloud of potential litigation over any interaction between the two. Defensive medical practices significantly increase the cost of many medical visits. This in turn exacerbates the ever increasing costs of health care to both the public and private sector. The current situation is damaging and untenable. There is plenty of room to improve the legal system while protecting patients rights.

  2. ajonnal Says:

    I heartily agree with the above comment. I work at a free clinic where malpractice cases are negligible as is usually the case in such a setting and we are covered by the government in the off chance that we do face litigation. This type of practice is wonderful, we are not worried about being sued and patients are not as hyper-vigilant because, at least in part, they are not receiving unbelievable high bills for their care.

    I wonder, though, how much basic poverty and class inequality feeds the tension between doctors and patients. In a country where so many people are increasingly disenfranchised it is no wonder that they entertain such untenable financial solutions such as lawsuits and lotteries.

    Finally, I have to say that though I am a physician and clearly biased on this issue, one of the reasons I hope for tort reform is that it will improve care for patients. Right now there is a poor correlation between lawsuits being waged and won, and the actual quality of care provided. Lawsuits are waged for arbitrary reasons sometimes and won for even more random reasons. I feel we should focus more on prevention of medical errors than on punishment of it.

  3. ag002f Says:

    While there is little hope for comprehensive medical liability reform at the federal level at this time, the Obama administration did award $23 million in grants for the purpose of demonstration and planning around patient safety and medical malpractice. The demonstration grants, which were awarded in allotments of up to $3 million, support the implementation and evaluation of evidence-based patient safety and medical liability projects. The list of funded projects, are available on the AHRQ website.

    http://www.ahrq.gov/qual/liability/demogrants.htm
    http://www.ahrq.gov/qual/liability/planninggrants.htm

    In addition, there is hope for medical liability reform at the state level. This session Utah enacted SB 145, which sets Utah’s cap on non-economic damages awarded in a medical malpractice action at $450,000, and removes the annual inflation adjustments that put the current cap at $480,000. The law also requires an affidavit of merit from a health care professional to proceed with an action if the pre-litigation panel makes a non-meritorious finding. However, this year we have also seen Illinois Supreme Court and the Supreme Court of Georgia rule that their states respective caps on non-economic damages are unconstitutional.

  4. hmb10 Says:

    Medical liability reform is needed as much as healthcare reform. Healthcare reform with emphasis on prevention is unlikely to decrease healthcare expenditures in the U.S. The hope is that it will stop the upward trajectory of expenditures. The cost of healthcare is being driven by the marvelous technology we have access to. Tort reform may allow physicians to make reasonable decisions without the fear of being sued. Why would a cardiologist want to take a 95 yo lady with multiple medical problems and a poor quality of life to the cardiac cath lab? More than likely to prove that everything possible was done in this woman who will likely succumb to another illness in the near future. Those are the sort of decisions I see occurring every day in healthcare and the costs of such decisions are crippling the system. The money that could be saved from frivolous lawsuits is needed to pay for the costs of insuring all.

  5. Mark Baird Says:

    I see a lot of chatter but as always I see no empirical evidence to back up the claims of this opinion.

    I have several questions:

    1. What is the percentage of doctors that are sued?
    2. As a percentage of all med mal lawsuits what percentage are frivolous?
    3. How much defensive medicine is based on fear and not actual probability.
    4. What is the average cost of discovery relative to a $250,000 cap?
    5. If the relative cost of discovery is greater than what an attorney can recover from $250,000 cap then will you not be denying someone with a legitimate claim their day in court and allow a bad doctor to practice medicine.
    6. Will this cap apply to hospitals that have millions to defend themselves and drive up the cost of discovery basically shutting down any access to the courts for legitimate claims because no attorney will be able to recover their cost?
    6. Is there no benefit to society or is ALL med mal harmful to society?
    7. If a woman loses her breasts because of a mix up to lab results are her breasts worth $250,000 minus attorney’s fees? Are yours?

    Is not what we are saying is the jury cannot be trusted, that we can not be trusted to decide how we want to orient society, that we can not be trusted to determine what is just and what is not?

    We as a society are capable of being doctors and scientist. We are capable of participating in this complex creature they call the free markets and Democracy but we are not capable of rendering judgment in a jury? Is does not make sense to me.

    If people tend to exaggerate things in life and when they are on a jury than why does it not make sense that the fear of being sued is an exaggeration by doctors because they to not like being sued?

    Is it not the free markets that created trial lawyers and what they charge? If we are to cap attorney fees then maybe we should cap what doctors are charged so that money does not corrupt their judgment. If this is all doctors want to do is practice their profession than they should be OK with setting national fees. We would then get people into the profession that truly are passionate about keeping people healthy. (Hospitals and doctors do not make money on healthy people.)

    I am willing to bet that if you were to look at doctors that own their own imaging facilities you would see increased usage. You would see usage that is not necessary because their judgment would be impacted by their profit.

    Maybe this is not all doctors and for the most part most doctors do an honest days work. If they do then why is it that the “others” are corrupted by money and the “others” are not? Is it not arrogant of doctors to believe that they are the only honest profession and that the common man is just out to take advantage of everybody?

    No, I believe most people are honest and want to render judgments that are correct and just. I believe that a jury of people is just as capable, with good information, of making a decision as any one expert.

    Thomas Jefferson once said, “I know of no safe repository of the ultimate power of society but people. And if we think them not enlightened enough, the remedy is not to take the power from them, but to inform them by education.”

    Do we not believe this?

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