Malpractice Reform, An elusive Goal

Tort Reform Battles On

The new wave of medical malpractice crisis.
In the past these produced reforms. This topic is complex, and intensely fought over. There are the reforms we need, and the reforms that might be practical. Discussing these would be difficult in this space, but we are trying to provide a guide.

Also see our Overview, Tort Reform Battles On
the U.S. Senate will vote on medical liability reform legislation, during Health Week, on Tuesday, May 2. A bill has not yet been introduced but it will likely include some form of reasonable limits on non-economic damages. As has happened in past years, the House of Representatives passed reform legislation.

The U.S. Senate Votes on Medical Liability Reform in early May and again in July! Reform has passed in the House, now it's up to the Senate. Senators need to hear from you now

The President issued the following statement: I am pleased that the House of Representatives has again passed medical liability reform legislation. The Nation's medical liability system is badly broken, as frivolous lawsuits are threatening access to quality health care and raising health care costs for all Americans. The medical liability crisis is driving up health care costs through higher insurance premiums, higher medical bills, and the practice of defensive medicine. This crisis also is imposing substantial costs on the Federal government and all taxpayers who bear the cost of Medicare and Medicaid. The liability crisis is driving good doctors out of medicine and leaving patients in many communities without access to both basic and specialty medical services. This is a national problem that deserves a national solution. For the sake of all Americans, it is time for the Senate to pass meaningful medical liability reform legislation.

, but the issue continues to be stalled by a handful of Senators who refuse to allow an up-or-down vote on this important issue.

Key organizations fighting for reform include

DLMR, an alliance of neurosurgical specialty societies, and Common Good, an effort to refomr the legal system as a whole, with a focus on Medical Malpractice.

While national reform is fought for, in your own practice, the most careful reforms of your style and protections may serve you the best as the national struggle continues.

The principal effort is Federal, and the following is a summary of Senator Frists bill.
6/26/2003--Introduced, Patients First Act of 2003 - Makes changes to the health care liability system, including compensation for injured patients and other issues arising out of health care law suits. A) Requires a suit to be brought within three years of the date of injury or one year after the claimant discovers or should have discovered the injury, whichever occurs first. Specifies exceptions when a suit may be brought later than three years after the date of injury.B)Sets forth requirements and permissible recovery amounts for compensating patient injury, including: (1) the full amount of economic loss without limitation; (2) noneconomic damages as specified; and (3) a fair share rule. C) Requires the court to supervise payment-of-damage arrangements, limiting contingency fees D)Sets forth rules for expert witnesses in cases concerning issues of negligence. States that such rules do not pertain to witnesses testifying to the degree or permanency of medical or physical impairment. E)Permits the introduction of evidence of collateral source benefits, except that this section shall not apply to provisions of the Social Security Act pertaining to State plans for medical assistance and Medicare as secondary payer F) Limits the availability of punitive damages, requiring clear and convincing evidence of malicious intent to injure or a deliberate failure to avoid substantially certain, unnecessary injury. Prohibits their award for products that comply with Food and Drug Administration (FDA) standards, except if the manufacturer or distributor of a particular medical product or the supplier of a component or raw material of such a product causes harm by failing to comply with a specific requirement of the Federal Food, Drug and Cosmetic Act.G) Authorizes periodic payment of future damages to claimants. H) Excludes suits for vaccine-related death or injury from the requirements of this Act if otherwise covered under the National Vaccine Injury Compensation Program. I) Preempts State law unless such law imposes greater protections for health care providers and organizations from liability, loss, or damages J) Expresses the sense of Congress that a health insurer should be liable for damages for harm caused when it makes a decision as to what care is medically necessary and appropriate.

The federal legislation was not successfully passed:
7/9/03 - Senate Democrats were successful in preventing S. 11, the Senate version of H.R. 5 that would limit non-economic damages in medical malpractice to $250,000, from proceeding. The vote was 49-48, 11 short of the 60 votes needed to overcome the Democratic-led filibuster.

As the whole package is not succeeding at this time, an effort is underway to offset some of the malpractice expense to make it more manageable.
S.1055 (Durbin-IL) Legislation to amend the IRS code to provide physicians and other health care professionals with a tax credit for qualified expenditures for medical professional malpractice insurance, and for other purposes.

Apparently one of the key current strategies is to break the problem into pieces, starting with specialties that are mostly likely not to be voted down, such as Ob-Gyn.
September 11, 2003, American Academy of Opthamology
Senate Strategizes to Move on Medical Liability Reform
After a 48-for and 49-against vote in the Senate in July, the Senate leadership is now working on a strategy for the fall on medical liability reform. It now appears that the base bill could be considered in four different forms for separate floor votes, starting with a vote the week of September 22, on an obstetrics bill. The provisions in each case would be the same as the House-passed liability bill, but the scope of services covered would be different. The four bills would apply to: (1) obstetric services; (2) trauma care; (3) rural providers and (4) good-Samaritan providers, who find themselves at the scene of a medical emergency and tend to injured individuals (i.e., a car accident, at a baseball game, etc.). The strategy is to put the anti-liability reform Senators in an uncomfortable position and possibly drive a wedge between them and the trial-lawyers. These limited-scope bills cover the procedures/providers who have seen the greatest increases in their liability insurance rates. This is currently hotly debated at the AMA.

A no-fault approach has been advocated, which appears to be in the stage of dicussion and intriguing supportive studies, but a strong argument is made that for roughly equivalent cost to the current system, it could distribute more money to help more patients. with more accuracy in assessing whether there was injury and what was needed. Dr. Studdert also tracks past malpractice crises, and argues that they resolved when they produced a reaction of tort reform.

Another effort at reform comes from the Leapfrog Group. This is a consortium of large companies working to improve quality of care and reduce risk and cost. They are to use collective purchasing power to motivate hospitals to implement particular measures.The consequences of this are debated.

In response to the call to press forward with malpractice reforms, legislators in 34 states-Alabama, Arkansas, Arizona, Colorado, Connecticut, Florida, Hawaii, Idaho, Illinois, Indiana, Kentucky, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wyoming-considered a variety measures to change existing systems during the 2003 session.Of these 34 states, 11 have enacted laws of varying degrees concerning liability for damages

Florida is struggling to find an effective limit on damages. A comment on this indicates that in Florida, after three special sessions a cap of $500,000 was passed, not the $250,000 hoped for. Many loopholes were present. The Florida Medical Association in its annual meeting this past Labor Day week-end passed a resolution calling for a constitutional amendment to cut down on contingency fees for trial lawyers. Although the remaining five insurance companies cannot, by virtue of the new law, increase their premiums, GE MedPro already decided to withdraw from the market, leaving about 400 physicians without coverage on their renewal dates.

Texas has passed a cap on noneconomic damages. Proposition 12 would allow lawmakers to limit damages awarded for a plaintiff's noneconomic damages such as mental anguish in medical malpractice lawsuits. It does not cap actual or punitive damages. The amendment clarified the Legislatures's authority to set those limits and protected a sweeping trial-award overhaul law that went into effect Sept. 1 from subsequent legal challenges. Described as the most sweeping change in tort law in more than 100 years, the law limits liability for doctors, hospitals and nursing homes at $250,000 each and caps total noneconomic damages at $750,000.