Physicians on Medical Malpractice Reform Options

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1 Physicians on Medical Malpractice Reform Options Survey Methodology This survey was conducted online from August 31 October 31, Invitations for the survey were ed to physicians who have been placed by Jackson Healthcare staffing companies and those who have not. Respondents were self-selected with 1,548 respondents completing the survey. The error range for this survey at the 95 percent confidence level is +/- 2.5 percent. Survey Questionnaire The purpose of this survey is to understand how effective the various proposed or implemented medical malpractice reforms are / would be in reducing the practice of defensive medicine. Prior to asking about the reforms, we need some information from you to help us understand the lens through which you view medical malpractice reform. Q1) Which of the following best describes how your medical malpractice insurance premiums are paid? I pay my own medical malpractice premiums. (1) My employer provides medical malpractice insurance. (2) Other. Please specify. (3) Merriam Webster defines defensive medicine as "the practice of ordering medical tests, procedures or consultations of doubtful value to protect the prescribing physician from malpractice suits." Q2) Do you currently practice any defensive medicine? Yes (1) No (2) If No Is Selected, Then Skip To End of Survey

2 Q2a. In previous surveys we've done, doctors have cited the following reasons they and their peers practice defensive medicine. Which of the following describe your reasons for practicing defensive medicine? Please choose all that apply To avoid being named in a potential lawsuit. (1) I have been named in a medical malpractice lawsuit, and do not wish to repeat the experience. (2) Colleagues have been named in (a) medical malpractice lawsuit(s), and I saw what they went through to defend themselves. I don't want that to happen to me. (3) To protect my good name: I do not wish to risk my reputation. (4) I do not want to risk my personal finances. (5) Patient or family demands or expectations that everything humanly possible be done. (6) Fear of missing something. I don't want to make a mistake. I don't want to be wrong. (7) Peer pressure. Other doctors of my specialty are doing it, and I'm afraid I'll look "deficient" by comparison if I do not. (8) Defensive medicine has become the new "standard of care". (9) I was trained to practice defensively. (10) To improve public or private patient satisfaction scores. (11) To adhere to the standard of perfection to which patients hold doctors. Any bad result is the doctor's fault. (12) To save time. (13) Defensive medicine is good medicine. I'm protecting my patients by doing everything I can for them. (14) Other. Please specify. (15) 2b. The reasons you cited for practicing defensive medicine appear below. Of those, which is the main reason you practice defensive medicine?

3 Q5) These are the medical malpractice reforms being considered in many state legislatures. Which of the following reforms do you think would be effective in reducing the amount of defensive Please choose all that apply. Caps on Non-Economic Damages: Limit the amount of money that a plaintiff can take as an award for non-economic losses, or "pain and suffering", in a malpractice suit. The cap may apply to the plaintiff, limiting the amount he or she may receive, or to each defendant, limiting the total amount for which each may be liable. (1) Disclosure, Apologize and Offer: Physicians have the opportunity to disclose their mistakes to patients and offer them swift, fair compensation in the hopes of opening lines of communication and avoiding litigation. Patients who accept the offer agree not to take further legal action; patients who do not accept may still pursue litigation. (2) Physician Safe Harbors: Provides a legal defense to medical malpractice claims if a defendant health care provider can show that an applicable, credible clinical practice guideline was followed in caring for the plaintiff. (3) Health Courts: Specialty courts designed to bring medical expertise to the malpractice decisionmaking process. While there are several versions of health courts proposed in the policy discourse, most proposals combine specialty-trained judges with independent (generally neutral) medical experts to oversee an expedited proceeding informed by evidence. There is no jury in this process, but there is still a trial. Often health court proposals suggest damages should be calculated based on a previously-agreed upon schedule and according to a standard more generous than negligence, perhaps something closer to "avoidable harm." (4) Administrative Compensation System: This approach replaces the tort system with a "no-fault" administered system patterned after state-based workers compensation systems. There are no lawsuits or assignment of blame in this system. Independent medical review boards determine the validity of each case (that is, was the patient injured by avoidable harm), and compensation is awarded to patients by a separate review board according to a pre-determined schedule. Versions of this program have been implemented in a number of other countries. (5) None of these will reduce the amount of defensive medicine physicians practice. (6) 6. Your choices for the reforms that you think will be effective at reducing the amount of defensive medicine you practice appear below. Please rank them by dragging and dropping them into the correct order from most effective to least effective. Q6a) Please explain why you ranked your choice as most effective at reducing the amount of defensive medicine you practice. Q3) In which state (or District of Columbia) do you practice? Q4) The following medical malpractice reforms have been widely implemented at the state level. Which of the following have been implemented in your state? Please select all that are applicable. Caps on non-economic damages: Limit the amount of money that a plaintiff can take as an award for non-economic losses, or pain and suffering, in a malpractice suit. The cap may apply to the plaintiff, limiting the amount he or she may receive, or to each defendant, limiting the total amount for which each may be liable. (1) Pre-trial screening panels: Panel reviews a malpractice case at an early stage and provides an opinion about whether a claim has sufficient merit to proceed to trial. Typically, but not always, a negative

4 opinion does not bar a case from going forward, but can be introduced by the defendant as evidence at trial. (2) Certificate of merit: Requires a plaintiff to present, at the time of filing the claim or soon thereafter, an affidavit certifying that a qualified medical expert believes that there is a reasonable and meritorious basis for the suit. (3) Attorney fee limits: Limits the amount of a malpractice award that a plaintiff's attorney may take in a contingent-fee arrangement. The limitation is typically expressed as a percentage of the award; it may also incorporate a maximum dollar value. (4) Joint-and-several liability reform: In cases involving more than one defendant, such as a physician and a hospital, this reform limits the financial liability of each defendant to the percentage fault that the jury allocates to that defendant. Without this reform, the plaintiff may collect the entire amount of the judgment from one defendant if the other(s) default on their obligation to pay, even if the paying defendant bore only a small share of the responsibility for what happened to the plaintiff. (5) Aggressive statutes of limitations/repose: Limits the amount of time a patient has to file a malpractice claim. Statutes of limitations bar suits unless they are filed within a specified time after the injury occurs or is reasonably discovered. Statutes of repose bar suites unless they are filed within a specified time after the medical encounter occurred, regardless of whether an injury has yet been discovered. (6) None: No medical malpractice reforms have been implemented in my state, or those that had been implemented were later repealed. (7) Other. Please specify. (8) Not sure / don t know. (9)

5 If caps have been enacted: Q4a) You have indicated that caps on non-economic damages have been implemented in your state. How has the implementation of this reform affected the amount of defensive medicine you practice? It has not changed the amount of defensive medicine I practice. (3) It has significantly decreased the amount of defensive medicine I practice. (5) Q4ai) Why has the implementation of caps on damages not affected the amount of defensive Q4aii) Why has the implementation of caps on damages increased the amount of defensive Q4aiii) Why has the implementation of caps on damages decreased the amount of defensive If pre-trial screening panels have been enacted: 4b. You have indicated that pre-trial screening panels have been implemented in your state. How has the implementation of this reform affected the amount of defensive medicine you practice? It has not changed the amount of defensive medicine I practice. (3) It has significantly decreased the amount of defensive medicine I practice. (5) 4bi. Why has the implementation of pre-trial screening panels not changed the amount of defensive 4bii. Why has the implementation of pre-trial screening panels increased the amount of defensive 4biii. Why has the implementation of pre-trial screening panels decreased the amount of defensive

6 If certificates of merit have been enacted: 4c. You have indicated that certificates of merit have been implemented in your state. How has the implementation of this reform affected the amount of defensive It has not changed the amount of defensive medicine practice. (3) It has significantly decreased the amount of defensive I practice. (5) 4ci. Why has the implementation of certificates of merit not changed the amount of defensive 4cii. Why has the implementation of certificates of merit increased the amount of defensive 4ciii. Why has the implementation of certificates of merit decreased the amount of defensive If attorney fee limits have been enacted: 4d. You have indicated that attorney fee limits have been implemented in your state. How has the implementation of this reform affected your practice of defensive medicine? It has not changed the amount of defensive medicine I practice. (3) It has significantly decreased the amount of defensive medicine I practice. (5) 4di. Why has the implementation of attorney fee limits not changed the amount of defensive 4dii. Why has the implementation of attorney fee limits increased the amount of defensive 4diii. Why has the implementation of attorney fee limits decreased the amount of defensive

7 If joint-and-severability has been enacted: 4e) You have indicated that joint-and-severability reform has been implemented in your state. How has the implementation of this reform affected the amount of defensive medicine you practice? It has not changed the amount of defensive medicine I practice. (3) It has significantly decreased the amount of defensive medicine I practice. (5) 4ei. Why has the implementation of joint-and-severability reform not changed the amount of defensive 4eii. Why has the implementation of joint-and-severability reform increased the amount of defensive 4eiii. Why has the implementation of joint-and-severability reform decreased the amount of defensive If aggressive statutes of limitations/repose have been enacted: 4f. You have indicated that aggressive statutes of limitations/repose have been implemented in your state. How has the implementation of this reform affected the amount of defensive It has not changed the amount of defensive medicine I practice. (3) It has significantly decreased the amount of defensive medicine I practice. (5) 4fi. Why has the implementation of aggressive statutes of limitations/repose not affected the amount of defensive 4fii. Why has the implementation of aggressive statutes of limitation/repose increased the amount of defensive 4fiii. Why has the implementation of aggressive statutes of limitation/repose decreased the amount of defensive

8 Answer If Q3) In which state do you practice? Massachusetts Is Selected Your answer to Q2 indicates that you practice in the state of Massachusetts. Are you aware of the changes to the Massachusetts healthcare law pertaining to medical malpractice that was signed by Governor Deval Patrick on August 6, 2012? Yes, I am aware (1) No, I am not (2) Answer If Q3) In which state do you practice? Massachusetts Is Selected This new Massachusetts law is in the category of medical malpractice laws know as Disclosure, Apology and Offer. It permits health care providers and their medical malpractice insurance companies to investigate, disclose and explain to patients what happened when unanticipated adverse outcomes occur and, if appropriate, to apologize and offer compensation to patients without resorting to litigation and without concern that the apology or the offer of compensation will be admitted into evidence during trial if the claim does not settle. Patients retain the right to consult with their own attorneys regarding their legal rights, to help evaluate the fairness and adequacy of any offer of compensation, and to begin medical malpractice litigation if they choose to do so. Based on the description of the law, how do you anticipate its passage will affect the amount of defensive I will significantly increase the amount of defensive medicine I practice in light of this new law. (1) I will somewhat increase the amount of defense medicine I practice in light of this new law. (2) This law will not change my practice of defensive medicine. (3) I will somewhat decrease the amount of defensive medicine I practice in light of this new law. (4) I will significantly decrease the amount of defensive medicine I practice in light of this new law. (5) Why do you anticipate the passage of this law will not change the amount of defensive medicine you practice? Why do you anticipate that the passage of this law will increase the amount of defensive Why do you anticipate that the passage of this law will decrease the amount of defensive

9 Answer If Q2) In which state do you practice? Oregon Is Selected Your answer to Q2 indicates that you practice in the state of Oregon. Are you aware of the medical malpractice reform recommendation that Governor John Kitzhaber issued on July 25th of this year? Yes, I am aware (1) No, I am not (2) Answer If Q2) In which state do you practice? Oregon Is Selected Governor Kitzhaber's proposal falls into the category of medical malpractice laws known as Disclosure, Apology and Offer. The system would require the injured party and the doctor or health care provider to discuss the circumstances of the incident, and include an apology from the provider if appropriate. The provider must make an offer of compensation to the injured party within 90 days, or instead decide no offer is warranted. If the injured party is not satisfied, the matter goes to mediation. Only if that fails can a lawsuit be filed. Based on the description of this proposal, how do you anticipate the passage of this law would affect your practice of defensive medicine? I would significantly increase the amount of defensive medicine I practice if this law were passed. (1) I would somewhat increase the amount of defensive medicine I practice if this law were passed. (2) I would not change the amount of defensive medicine I practice if this law were passed. (3) I would somewhat decrease the amount of defensive medicine I practice if this law were passed. (4) I would significantly decrease the amount of defensive medicine I practice if this law were passed. (5) Why do you anticipate the passage of this law would not change the amount of defensive Why do you anticipate you would increase the amount of defensive medicine you practice if this law were passed? Why do you anticipate that the passage of this law will decrease the amount of defensive

10 Q7) As individual state legislatures contemplate medical malpractice tort reform, what should they keep in mind from a physician's perspective? So that we may categorize your responses, please answer the following questions: Q8) Which of the following best describes the ownership of the practice in which you work? Solo practice; I am the practice owner (1) Single specialty practice; I have an ownership stake (2) Multi- specialty practice; I have an ownership stake (3) Physician owned single specialty practice; I work for the practice, but do not have an ownership stake (4) Physician owned multi-specialty practice; I work for the practice, but do not have an ownership stake (5) Hospital or health system owned single specialty practice (6) Hospital or health system owned multi-specialty practice (7) I am a W-2 employee of a hospital or health system (8) I am an independent contractor or a locum tenens physician (9) I am retired (10) Q9) Which of the following best describes your specialty? If you specialize in more than one discipline, please select the one on which you spend the most of your practice time. Q10) Are you: Male (1) Female (2) Q11) Which of the following best describes your age? Younger than age 25 (1) Between 25 and 34 (2) Between 35 and 44 (3) Between 45 and 54 (4) Between 55 and 64 (5) Age 65 or older (6)

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