Looking Forward – January 2012

The nation’s medical liability system continues to be one of the most troubling problems that surgeons must contend with. This statement particularly applies to those of us who are in private practice and high-risk specialties. Many surgeons and other physicians believe that the current system of resolving medical malpractice claims—the tort system—provides incentives for patients, their families, and trial lawyers to sue and seek exorbitant financial awards, regardless of whether their cases have merit.

In reality, though, most patients who are injured because of negligent care never file a lawsuit, and few patients who do sue ever receive compensation. So, this system is a failure from the perspectives of both patients and health care professionals.

Furthermore, the medical liability system has a negative effect on the nation’s sagging economy. The Congressional Budget Office estimates that reforming the means of resolving medical liability claims would reduce federal spending by $62.4 billion over 10 years. These savings would come about largely because physicians would be less likely to practice defensive medicine and would order fewer tests and provide fewer unnecessary services. In an era of budget cuts, such savings should be quite meaningful to lawmakers.

Moreover, as the number of liability cases and damage awards rise, physicians’ malpractice insurance premiums go up exponentially, adding to surgeons’ frustration. As a result, many surgeons avoid practicing in states where liability coverage is costly and in specialties that are at a greater risk for litigation, such as neurosurgery and obstetrics-gynecology.

Despite the fact that tort reform could reduce health care spending and waste and improve access to surgical care, efforts to pass federal legislation that would change the system have repeatedly failed to gain enough congressional support to pass.

Traditional reforms

In the article “Medical liability reform: Evidence for legislative and alternative approaches” (see page 6), Ian S. Metzler and John G. Meara, MD, DMD, FACS, provide a superb overview of all these issues. They also address the benefits and limitations of traditional approaches to medical malpractice reform, such as the provisions established in California’s Medical Injury Compensation Reform Act (MICRA) of 1975. These reforms include a $250,000 cap on noneconomic damage awards, a statute of limitations, constraints on attorneys’ contingency fees, a requirement that providers pay only their fair share of damages, and collateral offsets that prevent duplicate payments to plaintiffs.

Over the course of the nearly 37 years that have passed since MICRA was enacted, many states have passed similar legislation with varying degrees of success. For example, several state Supreme Courts have overturned noneconomic damage caps on constitutional grounds.

Because each state handles medical liability issues in its own way, patients and their physicians must deal with the inequities that a lack of federal legislation creates. As Mr. Metzler and Dr. Meara note, until national standards are set, the treatment of plaintiffs and defendants alike will remain inconsistent.

Nonetheless, MICRA-like liability reforms are unlikely to pass at the national level anytime soon. Hence, many health policy experts have begun examining alternative means of resolving malpractice claims. One option highlighted in the article by Mr. Metzler and Dr. Meara is the disclosure and offer approach. When this option is applied, the health care provider and the liability insurer proactively identify adverse outcomes, investigate them, and offer compensation without seeking to establish fault.

Other alternative forms of resolving medical liability claims highlighted in the article include the following:

  • “Safe harbor” protections for physicians who adhere to established guidelines
  • Requirements that health care organizations bear some of the liability for malpractice
  • Alternative dispute resolution under which a third-party mediator, rather than a court, works with the parties to create a binding agreement for resolving the case
  • Establishment of special “health courts”
  • No-fault resolution of claims
  • Standards that will assist in the prevention of adverse events

The ACS perspective

The American College of Surgeons (ACS) supports these alternative means of improving the medical liability system, as well as the following additional strategies: requiring plaintiffs to obtain certificates of merit, preventing “hired guns” from serving as “expert witnesses,” and ensuring that plaintiffs are barred from citing a surgeon’s apology for a negative outcome as evidence of poor or negligent care.

I want to commend Dr. Meara and Mr. Metzler for writing this article, which hopefully will stimulate other surgeons to think about and propose creative solutions to the liability problem. I further anticipate that this article will encourage surgeons to advocate for liability reform at both the national and the state levels. As lawmakers seek to develop a value-based health care system, they may be receptive to learning how tort reform and other means of resolving liability lawsuits can lead to cost savings, improved access to care, and better quality of care. For example, an argument could be made that “safe harbors” and similar protections may provide an incentive for physicians to participate in quality measurement programs given that these studies will likely serve as the basis of the guidelines they will need to follow to be shielded from malpractice claims.

I encourage each of you to read the article that Dr. Meara and Mr. Metzler have written as one step toward becoming better educated about this important issue. I also would urge you to contact the ACS Washington Office at ahp@facs.org to find out how you can more effectively advocate for the types of reforms that will enable all Americans to have access to high-quality, cost-effective care.

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