August 2019 Newsletter

Liability reforms must be more than skin deep

An analysis by University of Virginia (UVA) researchers on the prevalence of unnecessary medical tests highlighted the effect on health care costs and patient anxiety, leading a retired neurologist to reflect on how reforms must go beyond the superficial.

The initiative followed a report by UVA researchers Andrew Parsons, a hospitalist and an assistant professor of medicine, and Joe Wiencek, a pathologist and an assistant professor of pathology, which found that diagnostic care that offered little value to patients is estimated to cost our health care system $800 billion annually.

By offering technical solutions, such as a screen alert when a doctor orders a certain test and a weekly email that analyzes the amount of tests a doctor orders as compared with their peers, they seek to drive down unnecessary costs.

Retired Virginia neurologist Dr. Justiniano F. Campa urged policymakers and patients to consider the root cause – a physician’s fear of being faced with a lawsuit.

“I have to point out that the main reason for those tests lies in doctors’ fear of being sued, an event that can stop and destroy a hard-earned reputation and career,” Campa writes. While he applauded the researchers for their efforts, his proposal for a state system of medical liability self-insurance funded by the federal government was not embraced by the researchers.

Click here to read more about proactive efforts to more thoroughly research ways to decrease unnecessary tests, and here for a retired physician’s take on deepening reforms to reach the root of the problem.

Lawsuit compliance certificate requirements struck down in Utah

An effort to review the merits of liability claims prior to filing a lawsuit has been deemed unconstitutional by the Utah Supreme Court, potentially allowing meritless lawsuits to move forward.

In Utah, a certificate of compliance, required by a statute known as the Malpractice Act, is issued once Utah’s Division of Occupational and Professional Licensing (DOPL) reviews a liability claim and determines it has merit. In 2010 the legislature required any plaintiff whose claim was deemed not compliant to file a written affidavit from a medical expert stating that the claim was valid. It was this additional step to which the Court objected.

The court ruled that “the Legislature has power to try to limit frivolous lawsuits if it finds they drive up costs of care, but Utah’s constitution grants judicial power only to the courts.” In this case, the opinion of the court was that the DOPL was “improperly adjudicating claims on the merits.”

Proponents of reducing medical lawsuit abuse expect the 2020 legislature to address the ruling and bring the law in line with the court’s opinion.

To read more about changes to Utah’s liability lawsuit requirements, click here.

Connecticut ruling opens the door for medical lawsuit abuse

A ruling in Connecticut that found a physician was at fault for a medical liability claim to a woman who was not a patient is cause for concern.

While a true case of negligence was found when an employee of a medical practice communicated a negative sexually transmitted disease test result to a patient when in fact the test showed a positive result, the partner of the patient also sought legal recourse.

The defendant moved to have the negligence suit dismissed, arguing that it was actually a medical liability lawsuit and it should not move forward because the physician and the woman never had a doctor-patient relationship.

The trial court agreed with the defendant, but the ruling was overturned on appeal.

In a 4-3 majority opinion, the state Supreme Court justices found that the plaintiff’s claim was in fact one of ordinary negligence. Additional impact to future lawsuits could come from their ruling that a physician not in a standard doctor-patient relationship nevertheless “owes a duty of care to an identifiable third party” whose potential injury is foreseeable.

Physicians and advocates of a liability system that works for both patients and their doctors, including the American Medical Association, argued on behalf of the defendant that the ruling could lead to an increase in liability claims by non-patients.

To read more about how the health care system could be further impacted by this ruling, click here.