November 2014 Newsletter

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  • November 26, 2014
November 2014 Newsletter  
Protect Patients Now

Volume 9, Issue 11 November 2014 Newsletter


  Special points of interest:

Medical Liability Reform to put Deficit in Order
Voters at the Ballot Box Put Patients First
Window of Opportunity Opens for Reform

Medical Liability Reform to put Deficit in Order

Not only is the fiscal environment difficult in Washington – but patients across the country have been facing ever-increasing health care costs. A new report by the Congressional Budget Office (CBO) details how large of an impact medical liability reform would have on our budget, and our wallets.

As part of a report titled, “Options for Reducing the Deficit: 2015 to 2024” the CBO estimated that medical liability reforms, including reasonable limits on non-economic damages, implementation of a fair-share rule, a reduction in the statute of limitations, and limits on excessive attorney fees would result in $70 billion in deficit reductions over the next 10 years.

This includes $60.4 million in savings on mandatory spending, including federal health programs, $2 million savings on discretionary spending, and $7.6 million in government revenue increases.

The Health Coalition on Liability and Access has continued to push for inclusion of medical liability reforms as serious discussions on deficit reduction take place, encouraging leaders in Washington to take advantage of this key opportunity to fix a liability system that does not serve the needs of patients.

To read the full report issued by the CBO with details on savings that would be achieved by enacting comprehensive medical liability reforms, click here.

Voters at the Ballot Box Put Patients First

Election Day 2014 brought success to patients across the country, as a California ballot initiative thwarted attempts by personal injury lawyers to overturn the state’s successful medical liability reform laws, and as HCLA supported candidate, Joni Ernst from Iowa, was elected to the US Senate.

“The effects of medical lawsuit abuse on access to care are clear to voters, and patients, across the country,” said Mike Stinson, HCLA Chair. “We look forward to working with current and newly elected members of Congress to advance key liability reforms and initiatives that ensure deserving patients are fairly compensated and health care services are both affordable and accessible to all.”

Joni Ernst, the Senator-elect from Iowa, supports comprehensive federal medical liability reform laws and introduced legislation in Iowa to ensure patient access to quality medical care. The Health Coalition on Liability and Access supported Senator-elect Ernst’s campaign by running statewide radio ads in the weeks leading up to Election Day.

In California, voters were successful in rejecting the ballot initiative that aimed to quadruple the reasonable limits on non-economic damages and increase health care costs by $1,000 for a family of four, and instead maintained the limits that made California’s Medical Injury Compensation Reform Act (MICRA) a model for medical liability reform at the state and federal level. The initiative was defeated in every county in California and overall by more than a 2-1 margin, dealing a huge blow to the political and well-funded efforts of personal injury lawyers.

The Health Coalition on Liability and Access looks forward to working with both sides of the aisle on patient-centered solutions as the 114th Congress is seated early next year.

Window of Opportunity Opens for Reform

With medical liability insurance rates at a plateau – albeit a high one – the window of opportunity remains open to potentially productive reforms to fix a system that works for neither patients nor physicians.

Well-known researchers of medical liability issues Michelle M. Mello, David M. Studdert, and Allen Kachalia, MD argue in the Journal of the American Medical Association that “alternative approaches for resolving medical injuries” may yield success for physicians and patients, and favor these reforms over action at the federal level.

Alternatives to Traditional Medical Liability Reform

Communication-and-resolution programs – Programs in which health care practitioners and institutions openly discuss adverse outcomes with patients and proactively seek resolution, including offering an apology, an explanation of what happened, and, if the standard of care was not met, compensation

Mandatory presuit notification laws – Laws requiring plaintiffs to give defendants advance notice (typically ranging from one to six months) that they intend to sue

Apology laws – Laws protecting statements of regret, apology, or fault, or all three, made to patients by health care practitioners and preventing those statements from being used in malpractice suits

State-facilitated dispute resolution laws – Laws allowing voluntary filing by patients or health care practitioners or institutions with a state agency that will then assist the parties through a communication and resolution process. Conversations are generally protected from use in trial. If initial negotiations fail, the state will help find a mediator

Safe harbors – Laws giving health care practitioners and institutions a defense to a malpractice claim if they can show they followed an applicable guideline or protocol in caring for a patient.

Judge-directed negotiation – A court policy requiring malpractice litigants to meet early and often with the judge to discuss settlement. The court system employs an attorney with clinical training to help judges understand clinical issues. Judges assertively moves parties toward settlement and retain responsibility for cases through trial.

Administrative compensation systems – Laws routing medical injury claims into an alternative adjudication process that uses specialized adjudicators, evidence-based guidelines for liability determinations and damages, neutral experts, and (under most proposals) a compensation standard that is broader than the negligence standard.


“Action now to reduce the amplitude of the next medical liability cycle is both prudent and feasible. Further testing of nontraditional reforms, followed by wider implementation of those that work, holds the most promise,” Mello, Studdert, and Kachalia conclude.

An editorial by William Sage, MD, that accompanied the study lamented the inaction by previous members of Congress on this critical issue, stating that the “lack of bipartisanship caused the Affordable Care Act to sidestep medical liability and miss opportunities for improvement.”

But key to Dr. Sage’s argument in support of the study’s findings is that the non-traditional reforms, most notably, the communication-and-resolution avenue, reduce the need for expensive and time-consuming litigation.

While the HCLA applauds non-traditional solutions proposed to fixing a medical liability system that is costly and inefficient for patients, we hope that our policymakers will focus on proven reforms such as those enacted in California, Mississippi, Texas, and other states that have ensured access to quality care and a timely resolution of legitimate medical claims since those medical liability laws were enacted.

The HCLA agrees, however, that the time to act is now. Evidence is mounting that that there is a need for a more comprehensive solution at the federal level to eliminate a patchwork of laws that vary from state to state and leave patients and physicians uncertain about costs, access, and the timely resolution of legitimate claims.

Click here to read the full study in the Journal of the American Medical Association, and here for the accompanying editorial by Dr. William Sage.