1 March, 2011 Committee of Interns and Residents: Medical Malpractice Insurance and Liability Bibliography 2010 Barry, David, Jr. Missing the mark: Caps hamstring victims, fail to slow rising costs of care, malpractice insurance. Modern Healthcare 11 January 2010: 22. David Barry Jr., a partner at Chicago-based Corboy & Demetrio, critiques the arguments that are in support of capping compensation for noneconomic injuries sustained by medical malpractice. He uses previous Illinois Supreme Court rulings to support his belief that caps are unconstitutional. The ability to award excessive compensation for victims is essential due to the potential severity of their suffering. Additionally, Barry finds caps to be an unnecessary and unproductive way to address the two major issues at hand the costs of health care and malpractice insurance. The use of a cap to solve these problems is ineffective because premiums are based on all potential damages, not just economic, a total that has been rising in response to increased health care costs A de facto cap is also said to be seen by the fact that it is extremely rare for a victim to pursue more than a physician s coverage limit. Hyman, Chris Stern, et al. Interest-Based Mediation of Medical Malpractice Lawsuits: A Route to Improved Patient Safety? Journal of Health Politics, Policy and Law, 35.5 (2010): This study reports the results of two research projects involving the use of alternative dispute resolution in the area of medical malpractice. The projects, which involved utilizing mediation to address medical malpractice claims, rather than a traditional litigation approach, evaluated the efficacy of alternative dispute resolution both from a business perspective and from a patient safety perspective. The study makes the argument that mediation offers an opportunity for greater satisfaction from both patients and heath care organizations. It concludes that hospitals and lawyers understand the potential through mediation for business savings, as mediation offers significantly quicker and more efficient resolution of claims than the court system, but that they were less aware of the significant potential for mediation to maintain positive caretaking relationships and to reveal information potentially useful in the area of patient safety. Kachalia, Allen, MD, JD, Samual R. Kaufman, MA, Richard Boothman, JD, Susan Anderson, MBA, MSN, Kathleen Welch, MS, MPH, Sanjay Saint, MD, MPH and Mary AM Rogers, PhD. Liability Claims and Costs Before and After Implementation of a Medical Error Disclosure Program. Annals of Internal Medicine 152 (2010):
2 An analysis of the liability claims frequency and costs at the University of Michigan following their implementation of a disclosure-with-offer program. The study found significant decreases in the number of claims that resulted in lawsuits, but not the number of claims that did not result in lawsuits. The total number of claims made and paid also decreased, as did the amount of time to claim resolution, and total liability costs. There were decreases in both legal and patient compensation costs, and the average cost per lawsuit (from $405,921 before to $228,308 after initial program implementation). Krupa, Carolyn. Medical liability: By late career, 61% of doctors have been sued. AMedNews August 16, A study conducted by the AMA on 5,825 physicians finds that six out of ten physicians aged 55 and older have been sued. AMA argues that the results of the study demonstrate the need for malpractice reforms and the state and federal levels. Even though most of the claims are dropped, the litigious atmosphere hurts physicians and patients alike, as it influences what specialties physicians go into, and how, where, and for how long they practice. The study breaks down claims by physician specialty and practice, as well as age. It finds that general surgeons and OB/GYNs are the most likely to have ever been sued (69.5%, for both). 51% of OB/GYNs had been sued before reaching the age of 40. The least sued specialties included psychiatry, pediatrics and pathology. McDonald, Tim, et al. Responding to Patient Safety Incidents: the Seven Pillars. Quality and Safety in Health Care This article provides a through and descriptive study on responding to patient safety incidents, the process for which includes the seven pillars of reporting of incidents, investigation, communication and disclosure conversations, apology and remediation, system improvement, data tracking and performance evaluation, and education and training. The authors discuss adoption of a policy of transparency and openness as a major shift in organizational focus which distinctly enables improvements in the safety and quality of patient care. Mello, Michelle, and Allen Kachalia. Evaluation of Options for Medical Malpractice Systems Reform. A Study Conducted for the Medical Payment Advisory Commission. April A systematic report and evaluation of medical malpractice reform options, including explanation of each reform s implementation and effects as they have been documented to date. Traditional state reforms such as caps on non-economic damages and certificate of merit requirements are explored as well as innovative reforms such as administrative compensation, health courts, and disclosure and offer programs. The report argues that several of the innovative reforms show promise, although their hypotheses have not been tested thoroughly
3 enough to make definitive conclusions, and that the federal demonstration grants provide excellent opportunity to test them further. Mello, Michelle, Amitabh Chandra, Atul A. Gawande, and David M. Studdert. National Costs of the Medical Liability System. Health Affairs 29: 9 (2010): Systematic analysis of the different cost components of the medical liability system, concluding that overall annual medical liability costs (this includes defensive medicine) are estimated at $55.6 billion, or 2.4% of total health care spending. The components of the liability system examined (those that could be quantified and costs measured) were: indemnity payments, administrative expenses, defensive medicine costs, and other. The quality of evidence for each component was also assessed, and Defensive medicine costs were noted to have relatively low quality of evidence as compared to the other two major components. The writers concluded that these total costs, while perhaps not as high as some estimates have been, are a significant dollar amount, and suggested that some aspects of the federal health reform might decrease the costs. Sack, Kevin. Illinois Court Overturns Malpractice Statute. The New York Times 5 February Sack summarizes the significant Illinois Supreme Court decision that overturned the state s malpractice statute. The case involved a minor, Abigaile Lebron, who suffered mental impairment during her birth. In a 4-2 ruling, the court determined that the legislature had violated the state Constitution s separation of powers clause by regulating decisions that should be left to judges and juries. This decision is in regards to malpractice reform that capped noneconomic damages at $500,000 for verdicts against doctors and $1 million in cases against hospitals. The ruling comes at a time when federal proposals to establish similar caps are being considered in Congress. Such regulations have been included in proposed health care legislation in order to gain Republican support. The Illinois ruling overturned other changes such as a provision that made apologies by doctors inadmissible as evidence. The AMA, strong supporters for capping awards, feels that the decision threatens to negatively affect premium rates and access to healthcare. One of Lebron s lawyers commented that he did not see any way in which the legislature could rewrite the law in a fashion that meets the court s conditions. Lebron v. Gottlieb Memorial Hospital, No (Ill. Feb. 4, 2010) Chief Justice Fitzgerald delivered the judgment of the Illinois Supreme Court court in a 4-2 decision. At issue was the constitutionality of a section of the Code of Civil Procedure that was adopted in The section in question sets certain caps on noneconomic damages in medical malpractice cases. The plaintiff in the present case suffered permanent and severe injuries at birth. The plaintiff alleged that the limitations on noneconomic damages would not properly
4 compensate the injuries sustained, and the limitation itself violates the separation of powers by allowing the legislature to make decisions that should be reserved for judges and juries. Justice Karmeier concurred in part and dissented in part, citing President Obama s belief that medical malpractice reform can lower healthcare costs. In dissenting he also notes that the majority s action are in fact a true violation of separation of powers because of the way in which they reduce the legislature s lawmaking authority Adams, Kenneth. Testimony before the New York State Senate Standing Committee on Insurance, Committee on Health, and Committee on Codes at a Hearing on Medical Malpractice Reform. 1 December Kenneth Adams is the president and CEO of the Business Council of New York State, Inc. His testimony is at a hearing regarding medical malpractice reform in the state of New York. As a statewide organization representing employers, the Business Council stresses the need for malpractice reforms based on the belief that it will help alleviate the pressing issue of employee health care costs. Adams outlines the current economic state of New York, touching on issues regarding unemployment, taxes, deficits, and the outward migration of people and businesses. He then goes on to focus on the medical malpractice system. The Business Council, after assessing reforms that have taken place in other states, recommend a $250,000 cap for noneconomic damages, a $500,000 for punitive damages, as well as changes to joint-andseveral liability laws. Rather than pass legislation that increases taxes on health care as a means of subsidizing malpractice premiums, Adams recommends the proposed reforms as a way of reducing the costs of government and health care while helping stimulate construction activity and job growth. Avraham, Ronen, Leemore S. Dafny, and Max M. Schanzenbach. The Impact of Tort Reform on Employer-Sponsored Health Insurance Premiums. NBER Working Paper National Bureau of Economic Research, September Working with the National Bureau of Economic Research, Avraham, Dafny, and Schanzenbach evaluate the effect of tort reform on employer-sponsored health insurance premiums by exploiting state-level variation in the timing of reforms. Using a dataset of health plans representing over 10 million Americans annually between 1998 and 2006, they found that caps on non-economic damages, collateral source reform, and joint and several liability reform reduce premiums by 1 to 2 percent each. These reductions are concentrated in PPOs rather than HMOs, suggesting that can HMOs can reduce defensive healthcare costs even absent tort reform. The results are the first direct evidence that tort reform reduces healthcare costs in aggregate; prior research has focused on particular medical conditions.
5 Bienstock, Martin, et al. A Conversation About Medical Malpractice. NYSBA Health Law Journal 14.2 (2009): The article documents a conversation between Edward Amsler, the VP of Medical Liability Insurance Co., Susan Waltman, the executive VP and general counsel of GNYHA, and Bruce Clark, a New York trial lawyer representing plaintiffs in medical malpractice actions. The conversation is moderated by Martin Bienstock, a lawyer concentrating on health law and government policy. Throughout the conversation, the participants present differing opinions on many of the issues related to the medical malpractice debate. These issues include: the potential need for health courts to deal with the specialized nature of the cases, the difficulties surrounding the current process of identifying experts, the costs that arise from attaining a physician s authority to consent to settlements, the insurance coverage for neurologically impaired newborns, the move towards caps on damages for pain and suffering, and the disclosure of physician conflicts of interest. Boothman, Richard C., et al. A Better Approach to Medical Malpractice Claims? The University of Michigan Experience. Journal of Health & Life Sciences Law 2.2 (2009): At the University of Michigan, the medical center has instituted an innovative program of disclosure, in an effort to change the attitudes and practices surrounding malpractice claims. When the only option for malpractice claims is litigation, a significant opportunity for clinical and system improvements is lost. The University of Michigan s program provides support for patients and families who have experienced adverse events, including early offers of compensation, while also engaging caregivers and other hospital administrators in the process of analyzing and learning from mistakes. This system satisfies the financial and emotional needs of patients and families without having to resort to litigation, while also creating the means to use the feedback gained from patients and caregivers to improve patient safety. Buckley, Merit. Imposing Liability in the United States Medical Residency Program: Exhaustion, Errors, and Economic Dependence. DePaul Journal of Healthcare Law 12.2 (2009): To further complicate the implications of increased liability stemming from work hour regulations, the nation's courts have yet to develop a consensus on what standard of care medical residents, supervising doctors and the hospitals themselves are to be held to in medical malpractice or personal injury cases resulting from resident's exhaustion. The lack of supervision, the culture of medicine, and graduate medical education's reverence for tradition are intertwined with the medical residency work hour and liability issues. When the estimated number of deaths due to medical errors is coupled with the anecdotal evidence of sleep deprivation and exhaustion being causally related to physicians' errors and the empirical evidence of the cognitive depletion that occurs from a lack of sleep in other industries, the risks
6 to patients being treated by sleep-deprived, ill-supervised, physicians-in-training becomes evident. New York to the initiative by implementing regulations on the number of hours worked. In the private sector, the Accreditation Council for Graduate Medical Education (ACGME) has followed New York s lead in the regulation of medical residents' work hours by mandating work hour limitations as a requirement for accreditation as a teaching hospital in the United States. That said, both New York and the ACGME have failed to effectively enforce their policies, leading to a continuation of the problem. CIR/SEIU Executive Committee. Medical Malpractice and Health Care Reform. 24 September The CIR Executive Committee identifies two significant issues that must be addressed in order to find a solution to the current medical malpractice debate. First, the cost of premiums must be reduced, particularly for those working in fields with more risk involved. Additionally, it is necessary to reduce preventable medical errors, and ensure that those patients who are harmed by a preventable error receive timely and fair compensation. Reform is needed in order to facilitate openness in recognizing when errors are committed and examining the use of defensive medicine. There is also the need to assess the current tort system that leads to a substantial percentage of malpractice costs taking the form of legal and administrative fees. Considering reforms that address non-economic caps, dispute resolution processes, and other potential changes can ultimately lead to a less expensive system that meets the needs of both doctors and patients. Congressional Budget Office. Letter to the Honorable Orrin G. Hatch regarding effects of proposals to limit costs related to medical malpractice. 9 October Director Douglas Elmendorf, on behalf of the CBO, sent Senator Hatch a letter containing an analysis of the effects of proposed tort reforms. The medical malpractice reforms that are considered include caps on noneconomic and punitive damages as well as changes to the collateral source rule, the statute of limitations, and joint-and-several liability. The CBO estimates that such changes would result in a 10 percent decrease in premiums for malpractice insurance, thus also reducing total national health care expenditures. The CBO also cited recent research suggesting that these changes can indirectly lower the health care expenditures by reducing the use of defensive medicine. Their research found that the reforms would reduce total national health care spending by more than $10 billion. Director Elmendorf makes it clear that although thorough evidence exists to analyze the effects reform will have on health care spending, the research concerning the effects on health outcomes is noticeably less certain.
7 ElBardissi, Andrew W., Scott E. Regenbogen, Caprice C. Greenberg, William Berry, Alex Arriaga, Donald Moorman, Alan Retik, Andrew L. Warshaw, Michael J. Zinner, and Atul A. Gawande. Communication Practices on 4 Harvard Surgical Services. Annals of Surgery, Volume 250, No. 6, December Study and analysis of communication breakdowns between surgical residents and attending physicians at 4 teaching hospitals which identified 80 critical patient events in order to ascertain the communications surrounding them. The study shows that communication breakdowns were important contributors to error in surgery. It concluded that, in the context of critical events as well as routine care, residents frequently failed to obtain the attending surgeon s input. This breakdown seemed to be the result of the residents perceptions that contact was unnecessary for care of the patient or not required to inform the attending, rather than as a result of the attendings response to communication when it occurred. When attendings were contacted, they frequently made changes in the course of care. Gawande, Atul. The Cost Conundrum: What a Texas town can teach us about health care. The New Yorker 1 June Gawande analyzed the town of McAllen, Texas; a town that is one of the most expensive health care markets in the country. This astonished Gawande given the fact that it is located in a county that has the lowest household income in the United States. After visiting local hospitals and speaking with various doctors, Gawande came to the conclusion that the reason behind the unusually high costs is not due to a particularly unhealthy population or superior health services. Instead, patients in McAllen receive more of practically every service from diagnostic tests to surgeries. Many times, the necessity of these actions are highly questionable, leading Gawande to believe that it is a fear of malpractice lawsuits that created such a situation. The good news is that there is room to cut health costs without negatively affecting the quality of health care that patients receive. Doctors must also be prevented from manipulating the system to increase their revenue. Gawande finds that there are multiple cases of doctors following treatment and referral policies that will create the highest profit, rather than the healthiest benefit. Greater New York Hospital Association. Testimony before the New York State Senate Standing Committee on Insurance, Committee on Health, and Committee on Codes at a Hearing on Medical Malpractice Reform. 1 December Susan Waltman is the executive VP and general counsel for GNYHA. Her testimony is at a hearing regarding medical malpractice reform in the state of New York. She feels that the system is in need of multiple changes due to the fact that it runs contrary to the recommendations provided from industry experts. The changes can lower costs, compensate victims fairly, and deter unsafe practices. Given the current financial situation of New York
8 hospitals, Waltman stresses the need to reduce their costs in any way possible. Her testimony addresses specifically the issues that surround obstetrical care and defensive medicine. Waltman stresses the importance of working to reduce preventable, adverse outcomes. GNYHA has created numerous programs and initiatives that work towards that goal. Waltman examines a wide range of proposals that GNYHA supports, as well as those that they disagree with. Horner, Blair, et al. Contraindication: Federal Government Data Indicates That New York s Medical Malpractice Insurance Hikes are Contrary to Payment Trends. New York Public Interest Research Group, June In recent years, New York s medical community has described hikes in medical malpractice insurance premiums. Describing the premium increases as devastating, the medical lobby has claimed that the costs of liability coverage are driving doctors out of New York State. At least one doctor group has also charged that a wildly unpredictable medical liability adjudication system is the driving force in increasing premiums. The result, they say, is that New Yorkers have increasing difficulty in accessing care from the so-called high risk specialists, such as obstetricians and neurosurgeons. According to federal government data from the National Practitioner Data Bank, these claims are not true. This report finds that New York s medical malpractice system has been consistent and fair, with payouts actually reducing since Hospital Association of New York. Testimony before the New York State Senate Standing Committee on Insurance, Committee on Health, and Committee on Codes at a Hearing on Medical Malpractice Reform. 1 December HANY addresses the current problems associated with the tort system and the way in which a hospital insures itself against malpractice risk. The proposal presented calls for multiple measures that will establish an open and efficient way of handling malpractice cases. In order to reduce costs, HANY believes that mechanisms should be established in order to finance highdollar cases and compensate for neurological impairment cases. These changes are necessary to support hospitals at a time when they are financially unstable and purchasing insurance in a market that provides limited reasonable options. Howard, Philip K. Just Medicine. Op-Ed. The New York Times 2 April Howard focuses on what he calls waste in the health care system, stating that it costs America roughly $1 trillion per year. The cause of this waste is the use of defensive medicine because of a constant fear of legal consequences. Howard outlines the ways in which the current tort system ruins a doctor s relationships with patients, leads to unnecessary health care practices, and reduces the ability for a doctor to enjoy his or her work. Howard believes one way to tackle these issues is to create special health courts. These specialized courts would be able to
9 eliminate unreasonable claims and help reduces administrative delays. More importantly, these courts would be able to allow doctors to focus on providing the most efficient and beneficial health services possible. Howard, Philip K. The Menu of Malpractice Reforms. The Atlantic 13 September Howard addresses a wider range of reform possibilities in this article as compared to his New York Times piece. Even so, he still continues to refer to health courts in detail, stressing their importance in reducing defensive medicine. Howard also discusses facts surrounding other reforms, such as the use of caps on non-economic damages. Another possible change would be the adoption of medical panels that force cases to be reviewed by experts initially. The creation of guidelines would also allow doctors to follow procedures that could reduce their liability should an error occur. This, however, as Howard points out, is a difficult tool to use in a workplace that can rarely follow one set protocol for all patients. Other changes Howard discusses would encourage doctors to make early offers of compensation at reduced amounts and apologize openly with their patients. Lakdawalla, Darius N. and Seth A. Seabury. The Welfare Effects of Medical Malpractice Liability. NBER Working Paper National Bureau of Economic Research, September Policymakers and the public are concerned about the role of medical malpractice liability in the rising cost of medical care. We use variation in the generosity of local juries to identify the causal impact of malpractice liability on medical costs, mortality, and social welfare. The effect of malpractice on medical costs is large relative to its share of medical expenditures, but relatively modest in absolute terms growth in malpractice payments over the last decade and a half contributed at most 5.0% to the total real growth in medical expenditures, which topped 33% over this period. On the other side of the ledger, malpractice liability leads to modest reductions in patient mortality; the value of these more than likely exceeds the cost impacts of malpractice liability. Therefore, policies that reduce expected malpractice costs are unlikely to have a major impact on health care spending for the average patient, and are also unlikely to be cost-effective over conventionally accepted ranges for the value of a statistical life. Medical Society of the State of New York. Testimony before the New York State Senate Standing Committee on Insurance, Committee on Health, and Committee on Codes at a Hearing on Medical Malpractice Reform. 1 December David Hannan is the president of the Medical Society of the State of New York State. His testimony is at a hearing regarding medical malpractice reform in the state of New York. His testimony looks at the way in which medical malpractice premiums have rose at irregularly high rates over the five years preceding the implementation of a premium freeze by the state. This
10 rise in rates has created may difficulties for doctors, especially as they deal with decreasing reimbursements from health care plans. Dr. Hannan looks at the ongoing history of the issue, dating back to the 1970s. The MSSNY proposes reforms to create alternate resolution forums, change medical expert witness processes, and modify the procedure for attaining a Certification of Merit. MSSNY also calls on New York to apply to the Office of Health and Human Services to obtain a grant to help fund state reform. Other changes are supported, such as capping noneconomic awards, reducing frivolous lawsuits, and granting immunity for apologies from doctors. MSSNY also supports numerous structural reforms that can help reduce costs and promote better health care. Mello, Michelle and Amitabh Chandra. The Cap Doesn t Fit Op-Ed. The New York Times 11 July The article looks at the concern of medical malpractice from all viewpoints. Doctors are forced to practice defensive medicine and pay increasing premiums. Patients are unable to receive timely compensation. The public must also deal with the situation in that these concerns create a negative health care environment and increase costs. Though these authors do not support caps, they do feel that reforms creating alternative resolution process would be beneficial. They especially stress the need to create no-fault compensation for birth injuries that can occur regardless of the medical care provided. Mello, Michelle M. and Troyen A. Brennan. The Role of Medical Liability Reform in Federal Health Care Reform. The New England Journal of Medicine (2009): 1-3. Though medical liability was receiving less interest that health care reform, there are reasons to support bundling this reform with health care reform as a whole. The issue, which has continued to grow in its political nature, could benefit from bundling the two changes together. Both political parties support the notion that defensive medicine unnecessarily adds to increasing health care costs. Supporting malpractice reform in conjunction with health care reform will help garner support of previously skeptical physicians. Doctors fearing that health care reform will lower the reimbursements they receive may be willing to accept such a plan if it also reduces insurance costs. Additionally, adopting malpractice chance can help persuade Republicans to support health care reform. The approaches to change that are discussed by the authors include disclosure-and-offer programs, medical malpractice tribunals, and federal safe harbor guidelines. Mizeur, Heather R. Public Plan for Malpractice: A vastly expanded Federal Torts Claim Act would protect both doctors and patients. The Baltimore Sun 22 September Mizeur is a Democrat in Maryland s House of Delegates. She calls for a public plan to provide doctors with the ability to find and afford reasonable malpractice insurance. Given the nature of
11 the private insurance market, doctors struggle to acquire insurance that will not force them out of business. Though Mizeur thinks capping damages may help briefly, she finds this to be a temporary fix at best. The Federal Torts Claim Act that covers primary-care providers who practice at federally qualified health centers should be expanded to cover all primary-care providers. This plan has helped providers save considerably when compared to using private insurers. The program also works to rid the system of frivolous claims. Mizeur believes this system, were it expanded with proper restrictions and requirements, could help reduce the cost of insurance for all primary-care doctors. New York State Bar Association. Testimony before the New York State Senate Standing Committee on Insurance, Committee on Health, and Committee on Codes at a Hearing on Medical Malpractice Reform. 1 December Michael Getnick, president of the New York State Bar Association, provides his testimony at a hearing regarding medical malpractice reform in the state of New York. He urges the various senate committees to consider the effect that any reforms will have on ensuring access to the civil justice system. Getnick looks to discredit the argument that there has been an overwhelming majority of lawsuits, especially meritless cases, some of which provide excessive awards to plaintiffs. Getnick points out that the number of medical malpractice suits has remained consistent over the past decade. He also notes the fact that cases must first be reviewed by experts before they can be filed, at which point a judge can still dismiss the case or adjust the jury s award if the need arises. Getnick states that he is arguing for the benefit of the civil justice system and the New Yorkers that it is intended to serve. New York State Senate. Notice of Public Hearing for the Hearing on Medical Malpractice Reform before the New York State Senate Standing Committee on Insurance, Committee on Health, and Committee on Codes. 1 December The notice of public hearing identifies the three committees that will oversee the hearing: Senate Standing Committee on Insurance, Senate Standing Committee on Health, and Senate Standing Committee on Codes. The subject of the hearing is medical malpractice reform. The purpose is to (1) identify the fundamental costs of high medical malpractice costs; (2) explore potential solutions to help create a medical malpractice system that encourages quality, accessible medical care; (3) promote patient safety; (4) treat victims of malpractice fairly; (5) sets reasonable insurance costs for health providers; and (6) promotes a healthy marketplace for medical liability insurers.
12 Public Citizen. The 0.6 Percent Bogeyman: Medical malpractice payments fall to all-time low as health care costs continue to rise. 1 July Public Citizen wants to address the fact that while most of the public concern is on reforming medical malpractice litigation, an equally, if not more, important issue is the frequency of malpractice itself. Instead of limiting the rights victims have, change should be made to improve health care and reduce errors. Public Citizen points out that malpractice payments are actually on the decline, and the fact that it accounts for only a fraction of total health care costs makes it clear that the proposed reforms will not solve the health care crisis. The claims that malpractice insurance impaired by frivolous claims is another issue that Public Citizen takes aim at. The overwhelming majority of compensation goes to patients that sustained serious injuries. This point, coupled with the fact that only a fraction of malpractice errors actually turn into lawsuits, is reason to believe that the focus should be on reducing medical errors rather than the legal rights of patients. Sloan, Frank A., John H. Shadle. Is there empirical evidence for Defensive Medicine? A reassessment. Journal of Health Economics 28 (2009): Proponents of tort reform applied to medical malpractice argue for change partly on the premise that the threat of lawsuits has made medical care more costly. Using U.S. longitudinal data from the National Long-Term Care Survey merged with Medicare claims and other data for , this study assesses whether tort reforms have reduced Medicare payments made on behalf of beneficiaries and the survival probability following an index event. Direct reforms (caps on damages, abolition of punitive damages, eliminating mandatory prejudgment interest, and collateral source offset) did not significantly reduce payments for Medicare-covered services in any specification. Indirect reforms (limitations on contingency fees, mandatory periodic payments, joint-and-several liability reform, and patient compensation funds) significantly reduced Medicare payments only in a specification based on any hospitalization, but not in analysis of hospitalization for each of four common chronic conditions. Neither direct nor indirect reforms had a significant effect on the health outcomes, with one exception. The overall conclusion is that tort reforms do not significantly affect medical decisions, nor do they have a systematic effect on patient outcomes. Volsky, Igor. Would Tort Reform Lower Health Care Costs? The Wonk Room. ThinkProgress.org, 11 September Volsky writes his piece in response to President Obama proposing that medical malpractice reform be added to health care reform. It is acknowledged that reform of this sort could save significant costs, but these costs still pale in comparison to the overall amount spent on health care. A major issue is the use of defensive medicine or other forms of care that are considered
13 unnecessary. One expert believes that nearly 30% of health care expenditures go to unnecessary services and measures. Simply using caps cannot be guaranteed to reduce costs, as Texas health care system demonstrates. It is important to identify the many reasons that may lead to doctors performing these unnecessary procedures, whether it be to gain profit or avoid lawsuits American Medical Association. Medical Liability Reform NOW!: A Compendium of facts supporting medical liability reform and debunking arguments against reform. 5 February The AMA analyzed medical liability insurance on both the state and federal levels. Concern regarding the various tort systems has led medical students, residents, and even established providers to alter their career choices in order to avoid high-risk specialties or states that have unfavorable liability regulations. The rising influence of the role medical liability takes in steering doctors away from certain specialties, or out of the profession altogether, will only lead to a noticeable reduction of necessary health care providers. They have compiled extensive research on the effectiveness of various reforms, most notably the use of caps on compensation. The AMA goes on to outline proposals and reforms that have been surfaced in various states and at the federal level. Chamberlain, Nick. The folly of rewarding silence while hoping for open reporting of adverse medical events how to realign the rewards. The New Zealand Medical Journal (2008): Article discussing the impediments to quality improvement through reporting of medical incidents, including adverse events and near misses. Chamberlain addresses the issue of adverse events in hospitals, as well as underreporting of those events, as one which affects the entire Western world, and which is being insufficiently addressed. The barriers to reporting, and the subsequent quality improvements that can come from reporting, include the shame and blame culture, the individualistic and competitive medical culture, organizational factors, individual factors, and a disdain and lack of clarity surrounding incident reporting. Chamberlain argues that, in many countries, the selective use of open disclosure and incident reporting amounts to tokenism. He argues that the way to solve this problem and improve/encourage reporting is to better align the reporting systems in place and the culture that surrounds the systems. Common Good and Robert Wood Johnson Foundation Report. Creating Health Courts Through Consent: Opportunities and Challenges for a Non-Legislative Approach to Administrative Injury Compensation. Health Courts provide the possibility for a medical malpractice reform that is not dependent on legislative change. This article explains the concept of health courts, which are special arenas
14 for the processing of malpractice claims with the goal of removing the adversarial relationship promoted by the current system, and using a standard of avoidability rather than negligence. They may be implemented using patient consent, rather than legislation. In this way, patients could consent to having a future claim processed by administrative injury compensation system either at the beginning of treatment or as part of their health care plan. The report explores the implications of such a program, and possibilities for its implementation. Currie, Janet and W. Bentley MacLeod. First Do No Harm? Tort Reform and Birth Outcomes. Quarterly Journal of Economics (2008): In the 1980s and 1990s many states adopted tort reforms. It has been argued that these reforms have reduced the practice of defensive medicine arising from excess tort liability. The authors found that this does not appear to be true for a large and important class of cases childbirth in the United States. Using data from national vital statistics natality files on millions of individual births from 1989 to 2001, they examined whether specific tort reforms affect the types of procedures that are performed, and the health outcomes of mothers and their infants. The research found that reform of the joint and several liability rule (or the deep pockets rule ) reduces complications of labor and procedure use, whereas caps on noneconomic damages increase them. The article shows that these results are consistent with a model of tort reform that explicitly allows for variations in patient condition. McDonald, Timothy, Kelly M. Smith and David Mayer. Full Disclosure and Residency Education: Resident Learning Opportunities within the context of a Comprehensive Program for Responding to Adverse Patient Events, ACGME Bulletin, Full and open disclosure of medical errors in the context of a program of reporting, investigation, communication, apology, and improvement, is beneficial to the health care delivery system as a whole, including in the area of patient safety. It is also an ideal context in which to provide training and assessment in ACGME identified core competencies. The authors describe the disclosure program currently implemented at the University of Illinois Medical Center at Chicago and how residents are integrated into the program, as well as how the program components enhance residency training in each of the ACGME core competencies. New Jersey Medical Care Availability Task Force. Final Report to the Governor on medical malpractice liability. June The NJMCATF extensively investigated New Jersey s medical liability system and what, if anything, should be changed. The task force was compromised of various stakeholders representing hospitals, insurers, physicians, lawyers, and the government. The MCATF found that there is insufficient evidence to support limitations on non-economic damages, and thus,
15 they recommended that the current system is not changed in that regard. They also recommend that New Jersey conduct an independent analysis relating to the different elements that affect a patient s access to care. While the task force was unable to determine what exact reasons were, whether it was medical liability or other factors, it was evident that there are specialties where access is of significant concern. The task force does not find it necessary to change the system regarding the statute of limitations, frivolous lawsuits, or a pre-suit procedure. MCATF does, however, find that it would be beneficial for all affected stakeholders to consider adopting some form of a full-disclosure program. New York State Council on Graduate Medical Education. Policy Recommendations to the Commissioner of Health. March The NYS Council on Graduate Medical Education provided Commissioner Daines, of the NYS Department of Health, with policy recommendations. The COGME made recommendations in terms of the transparency and accountability in GME, the quality of GME, the supply of physicians, the cultural competence and diversity in medicine, biomedical research, and data collection. Their suggestions look at the current system in regards to budgetary concerns, training programs, allocated resources, and other potential areas that could be changed. The council also looked at ways to address their concerns revolving around the use of GME financing to indirectly support public goods and services Cranberg, Lee D., Thomas H. Glick, and Luke Sato. Do the Claims Hold Up? A Study of Medical Negligence Claims Against Neurologists. Journal of Empirical Legal Studies 4.1 (2007): The authors performed an in-depth review of 42 malpractice claims filed in the past 20 years against neurologist defendants covered by a common insurer. For each case, they determined whether the neurologist had rendered harmful, substandard care and noted the case outcome. In 23 claims, there had been no harmful negligence, and payment on behalf of the neurologist occurred only once. The other 19 claims had negligent harm, but in 13 of them no payment was made on behalf of the negligent neurologist. Given this data, the authors find that the medical negligence system performed poorly, yielding a majority of inappropriate claims and no payment in a many appropriate claims. Several studies have investigated whether medical negligence claims yield merited outcomes; the authors sought to expand this knowledge by studying these claims against neurologists. The authors believe that this failure by the legal system only compounds a patient s loss at the hands of the health care system.
16 Gallagher, Thomas H., David Studdert, and Wendy Levinson. Disclosing Harmful Medical Errors to Patients. The New England Journal of Medicine (2007): Given the rate of medical errors, and the known risk of many medical services, support continues to mount in favor of moving towards transparency in health care. Though many doctors acknowledge that they would like to inform patients of potential risks as well as any errors that take place, these same doctors also fear the repercussions of malpractice lawsuits. The fear of such consequences puts a strain on the relationship between a doctor and patient. In order to eradicate this fear, many programs have been proposed to help establish an open and honest system. The authors identify proposed programs and examine their merits. They also examine laws at the state and federal level that have attempted to better the process and the different criticisms that have been waged against each. Kaldjian, Lauris C., et al. Disclosing Medical Errors to Patients: Attitudes and Practices of Physicians and Trainees. J. of General Internal Medicine (2007): A large-scale survey of faculty physicians, resident physicians, and medical students in several geographic regions of the United States revealed that while the vast majority of physicians surveyed reported that they would disclose a hypothetical error causing either minor or major harm (97% and 93%, respectively) less than half had actually disclosed an actual minor error and only 5% had disclosed an actual major error. The study examines the gap between the acknowledged value of disclosure by the medical community as well as patient safety groups and others, and the culture surrounding disclosure in hospitals. The study concludes that while fear of malpractice is a factor in terms of disclosure, it is not the only one. Other concerns, such as negative patient reactions, professional discipline, loss of reputation, and blame, are also at play and must be addressed. Singh, Hardeep, et al. Medical Errors Involving Trainees: A Study of Closed Malpractice Claims From 5 Insurers. Arch Intern Med (2007): The authors looked at malpractice claims in which trainees were judged to have played an important role in harmful errors. Among the 240 cases they explored, errors in judgment, teamwork breakdowns, and a lack of technical competence were the most prevalent contributing factors, with each playing a role in more than 55% of cases. Lack of supervision and handoff problems were the most common teamwork problems, and both were disproportionately more prevalent among errors that involved trainees as compared to those that did not. The most common task during which failures of technical competence occurred were diagnostic decision making and monitoring of the patient or situation. In addition to handoff problems, house staff are particularly vulnerable to medical errors owing to teamwork
17 failures, especially lack of supervision. As such, the authors recommend that graduate medical education reform should focus on strengthening these aspects of training Clinton, Hilary R. and Barack Obama. Making Patient Safety the Centerpiece of Medical Liability Reform. The New England Journal of Medicine (2006): The article focuses on the need to put patient safety at the front of medical malpractice improvements. It is necessary for physicians, hospitals, insurers, and patients to work together to find an equitable solution. Though the IOM s 1999 report estimating that nearly 100,000 deaths each year may be attributed to medical errors is highly publicized, what is also important is that 90% of these deaths are due to failed systems and procedures, not physician negligence. To improve both patient safety and the medical liability climate, the tort system must achieve four goals: reduce the rates of preventable patient injuries, promote open communication between physicians and patients, ensure patients access to fair compensation for legitimate medical injuries, and reduce liability insurance premiums for health care providers. While capping damages awarded to plaintiffs may reduce premiums, it still does little to address all of the necessary goals. Clinton and Obama detail their proposed MEDiC program and the effects it can have on facilitating open communication in health care. Congressional Budget Office. Medical Malpractice Tort Limits and Health Care Spending. April The CBO reviews all of the tort reforms that Congress has considered in light of the arguments claiming defensive medicine to be a significant reason for America s high health care expenditures. The reforms they consider include a cap on noneconomic damages, a modification or elimination of join-and-several liability, a cap on attorneys fees, the establishment of a collateral source rule, a cap on punitive damages, and a revision to the statute of limitations. Eliminating joint-and-several liability is associated with increases in health care and hospital spending per capita. A cap on noneconomic damages, allowing evidence of collateral-source benefits to be introduced at trial, a cap or ban on punitive damages, and any direct tort limit are each associated with reductions in health care spending for at least some form of spending per capita. The CBO provides a detailed analysis of the extent to which each reform can be expected to increase or reduce health care spending. King, Joseph H. The Standard of Care for Residents and Other Medical School Graduates in Training. American University Law Review 55.3 (2006): King addresses the allocation of liability as it pertains to residents and medical school graduates in training. He does so by looking at lawsuits filed against residents and trainees. The focus of his article is on the question of the standard of care applicable in assessing whether the
18 professional conduct of a medical resident was negligent. Rather than address the problem of treatment by medical residents exclusively through either the standard of care or the doctrine of informed consent (or some other information-based theory of liability), he proposed the following solution that melds the two doctrines: when medical residents (both not-yet-licensed and licensed ones) fully disclose their status, including their experience, training, education, and credentials, to their patients, then their performance should be judged by a standard of care commensurate with their actual level of post-graduate medical training, education, and experience. For example, a non-disclosing surgical resident would be held to the standard of care of a specialist surgeon when performing surgery or managing a post-operative patient's care. Medical workers should consider a global disclosure at the first meeting between the patient and a resident (or his supervising physician) with ongoing responsibilities. Mello, Michelle M. Medical Malpractice: Impact of the crisis and effect of state tort reforms. The Synthesis Project, Report No. 10. Robert Wood Johnson Foundation, The Synthesis Report examines how the malpractice environment affects health care deliver and the impact of state reforms on premiums, claims frequency, claims payouts, and physician supply. While the weight of the evidence suggests that the malpractice crisis has had a modest effect on physician supply, the evidence base is not yet adequate to draw conclusions about whether patients access to high-risk services has been compromised as a result. The literature evaluating state tort reforms, while problematic due to methodological issues, does offer some useful findings. Caps on noneconomic damages are the most common and most effective reform, although they disproportionately burden the most severely injured patients. The report notes the importance of improving the availability and quality of state data on claims and premiums. Due to the lack of complete data and the imprecise way in which some of it is measured, the report finds that it is difficult to properly assess the system to the extent that some researchers have claimed. Mello, Michelle M. Understanding Medical Malpractice Insurance: A primer. The Synthesis Project, Report No. 8. Robert Wood Johnson Foundation, The policy primer is intended to provide background information for the policy debate over the medical malpractice crisis. The primer focuses on addressing how the medical malpractice works, how much is spent on the medical malpractice system, what the medical malpractice crisis is, and what causes malpractice crises. The primer discusses the involvement of the many different stakeholders and the role they play in the insurance cycle. The primer is also intended to shed light on the lack of hard evidence that exists for the malpractice debate. Statistics and numbers can be overstated or interpreted incorrectly. Mello also identifies the ways to recognize that a state is entering a malpractice crisis. These ways include the
19 deteriorating financial performance of insurers, decreased availability of insurance, are large premium increases, to name a few. Studdert, David M., et al. Claims, Errors, and Compensation Payments in Medical Malpractice Litigation. The New England Journal of Medicine (2006): In the current debate over tort reform, critics of the medical malpractice system charge that frivolous litigation claims lacking evidence of injury, substandard care, or both is common and costly. These researchers had a team of trained physicians review a random sample of 1452 closed malpractice claims from five liability insurers to determine whether a medical injury had occurred, and if so, whether it was due to medical error. We analyzed the prevalence, characteristics, litigation outcomes, and costs of claims that lacked evidence of error. For 3% of the claims there were no verified medical injuries, and 37 did not involve errors. Roughly 75% of all claims not associated with errors or injuries did not result in compensation. Nearly the same percent of those involving injuries did lead to compensation. Overall, claims involving injuries accounted for almost 80% of total administration costs. Claims that lack evidence of error are not uncommon, but most are denied compensation. The vast majority of expenditures go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant. Studdert, David M. Testimony before the Senate Committee on Health, Education, Labor and Pensions At the Hearing Entitled Medical Liability: New Ideas for Making The System Work Better For Patients. 22 June David Studdert, Associate Professor of Law and Public Health at the Harvard School of Public Health, gave his testimony at a hearing regarding reforming the medical liability system. Studdert presents the findings of his research team to the three Senate committees. His team found that the system is relatively successful at identifying and compensating meritorious claims and denying compensation for non-meritorious ones. That said, he still finds numerous problems with medical malpractice. In summarizing over thirty years of research, Studdert acknowledges three particularly serious problems: many patients who sustain injury that is both severe and preventable do not receive compensation; the process of deciding whether a claim is compensable is too slow and expensive; and the threat of litigation provokes defensive medicine, but does not stimulate improvements in the quality of health care services. He recommends the use of grants to support demonstration projects that explore alternative solutions such as health courts. Using these projects, and carefully evaluating them, one could better assess options for reform.
20 Vidmar, Neil. Medical Malpractice Litigation in Pennsylvania: A report for the Pennsylvania Bar Association. May Niel Vidmar, writing for the Pennsylvania Bar Association, addresses the various assertions made against Pennsylvania s malpractice system. In doing so, he looks at the effects of recent reforms that have been enacted in the state and the effect they have had on the frequency of claims and payouts. There are allegations that the state s system is so flawed as to force doctors to leave Pennsylvania in search of more favorable climates. Vidmar s report, however, indicates that the multitude of reforms that are already in place have helped correct some of the previously existing flaws. Vidmar also takes note of the interests of patients who have been injured through medical negligence. Their interests, regardless of how important they may be, are often ignored when the subject of medical malpractice litigation is brought before legislatures and the general public. Vidmar also denies the argument that the state deals with incompetent juries who ruin the system. Instead, he argues that judges and post-verdict settlements help to moderate the rare instances when juries award excessive damages. Vidmar looks at the validity of other arguments such as the need to reduce outward migration of doctors and the effectiveness of caps on damages. Williams, Claudia H. and Michelle M. Mello. Medical Malpractice: Impact of the crisis and effect of state tort reforms. The Synthesis Project, Policy Brief No. 10. Robert Wood Johnson Foundation, The policy brief defines what it means to be in a malpractice crisis and whether or not the United States was in one. While the situation varies by state, many states are in their fifth consecutive year of a crisis. States have adopted wide ranging policies and reforms to try and constrain premium growth. The brief states that caps on noneconomic damages have been the only successful changes, reducing average award size by more than 20%. Even these reforms are troublesome in that they disproportionately burden the most severely injured patients. There is limited hard evidence to conclude that the crisis has reduced access to high-risk specialties. Evidence does point to defensive medicine, to one extent or another, being used to combat liability risks. The brief looks at the effects of the reforms, specifically the use of caps CRICO/RMF and AHRQ. Malpractice Insurers Medical Error Surveillance and Prevention Study (MIMESPS). 29 September MIMESPS analyzed 1452 malpractice claims and determined that 93% of the claims involved physical injury, and typically these injuries were severe. A staggering 26% of the claims involved death. The study also looked into the factors that led to medical errors. Approximately nine out of ten errors involved at least one cognitive factor such as errors in judgment, vigilance, or