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Making the Case for Federal Liability Reform
While many states have come a long way in advancing medical liability reform for the benefit of their patients – Texas and California come to mind – far too many states have taken no action at all, and a patchwork of state laws have led to either an outpouring or influx of physicians, depending on the friendliness of the state’s liability climate.
In this month’s Suffolk Law Review, Paul Taylor, Chief Counsel of the House Judiciary Committee’s Subcommittee on the Constitution, explores why federal tort and liability reform is not only legal – but necessary.
Taylor writes, “Madison predicted that, in the future, citizens would see the rise of new forms of rules and regulations in the states that would increase the costs of things nationwide, and that Congress would need its Commerce Clause authority to counter those cost-increasing influences.”
Additionally, “The relatively recent rise in virtually limitless tort liability, regarding both products and professional liability, is one future variant of state systems that restrict Americans’ access to goods and services in national, private markets…[and] with the creation of an insurance system, courts began to increasingly foist liability on those with insurance regardless of fault, including vital specialists like doctors, with huge awards for unquantifiable and often arbitrary damages such as those for emotional distress and pain and suffering.”
Taylor concludes that the Commerce Clause gives Congress the power to remove or supersede state barriers that impede and weaken our national economy – as medical lawsuit abuse and the practice of defensive medicine by physicians do.
“Under such circumstances, Congress can enact uniform rules to better administer free commerce among the states,” Taylor states.
While the House passed comprehensive liability reform last month, the legislation has yet to be taken up in the Senate. To read the full law review piece in support of federal tort and medical liability reform efforts, click here.
More Movement for Medical Liability Reform Legislation
Last month, the full House of Representatives passed a version of the HEALTH Act with bipartisan support, and supporters of medical liability reform in Congress continue to push to make the reforms a reality.
Just last week, both the Energy and Commerce and Judiciary Committees again passed the HEALTH Act and voted to include the full text of the legislation in the budget reconciliation bill that will soon move to the House floor for consideration.
The HCLA sent a letter of support for inclusion of comprehensive medical liability reform to Judiciary Committee Chairman Lamar Smith, stating, “[The HEALTH Act] has been demonstrated to provide significant savings to the federal government. Specifically, the Congressional Budget Office stated that the reforms in the HEALTH Act (as passed by the House of Representatives last month) would provide more than $48 billion in savings over 10 years – savings which will help the Budget Committee to achieve its deficit reduction goals.”
Protect Patients Now and the HCLA will continue to update you on any movement of medical liability reform legislation as it makes its way through the House and Senate. To read the full letter from HCLA Chairman Mike Stinson to Judiciary Committee Chairman Lamar Smith, click here.
The Massachusetts Model
While patients in many states have benefited from greater access to care through traditional liability reform avenues, including reasonable limits on non-economic damages, seven Massachusetts hospitals are testing a new approach to reduce lawsuit abuse while fully compensating deserving patients.
The new process of Disclosure, Apology, and Offer (DA&O), is an alternative to the current tort system and is championed by the Massachusetts Medical Society.
“The current approach to medical liability is onerous for both patients and physicians,” said Alan Woodward, M.D., Chair of the MMS Committee on Professional Liability and a past president of the organization.
“It discourages transparency, inhibits communication between caregivers and patients, burdens physicians with excessive premiums, leads to unwarranted lawsuits, and motivates physicians to practice defensive medicine. We can make the approach to medical liability much better for both patients and physicians and stop driving unnecessary costs with a new model that promotes honesty and transparency.”
The new initiative is designed to provide compensation within 3-6 months, according to Woodward, rather than the average of more than five years it takes to normally move a medical liability suit through the courts.
While the HCLA continues to support reasonable limits on non-economic damages and other proven methods of liability reform, reducing medical lawsuit abuse in Massachusetts and ensuring that the system works for deserving patients is an effort we can all support. For more information on the new Massachusetts model, click here.
Positive Prognosis for Ohio Patients
By 2003, the Ohio medical liability system was at a tipping point. Access to care was in jeopardy, due to the overwhelming number of meritless liability suits filed and the high cost of liability insurance for the states’ physicians. Physicians were being forced to go out of business – or go out of state.
Today, patients and their doctors are benefiting from a decrease in medical lawsuit abuse and lower health care costs, due to reforms passed by then-Governor Bob Taft almost ten years ago.
The reforms included a reasonable limit of $500,000 on non-economic damages, and an “affidavit of merit” from a qualified practitioner to certify the validity of liability claims.
A newly released report shows that doctors’ medical malpractice rates have dropped more than 26 percent in the years that followed, according to Tim Maglione, of the Ohio State Medical Association.
“It’s not only good news and a good trend, but it is proof that tort reform accomplished what it set out to do — slow the growth of what we thought were runaway lawsuits and to stabilize the market for physicians,” said Maglione.
With the reduction in frivolous lawsuits, lower costs, and speedier resolutions for deserving patients, Ohio patients are ensured access to vital medical services. To read more about the success Ohio is seeing from its medical liability reform efforts, click here.
Physicians Face Steep Costs in Liability Lawsuits
In a Letter to the Editor in this month’s New England Journal of Medicine, four researchers detail the varying costs of defending a medical liability lawsuit.
While the costs of a lawsuit that results in compensation to the patient are of course high, what the researchers pointed out were the steep costs of defending a lawsuit that results in no payment at all.
The researchers acknowledge that “defense costs constitute an important expense for insurers, and they affect physicians and patients by raising the costs of malpractice premiums and medical care, respectively.”
Mean defense costs in cases that did not result in payments varied significantly – ranging from $7,283 in nephrology to $25,073 in gynecology.
The researchers conclude that, “there is still a meaningful cost of resolving claims that never result in payment….[and] lowering the costs of dispute resolution could lead to considerable savings for physicians and insurers.”
To read the letter to the editor, and view the findings of leading medical liability researchers on the high costs of defending a lawsuit, click here.