The Impact of Malpractice Reform

Here is an article on the changes incurred by states that have enacted some sort of malpractice liability reform, primarily caps on recovery for pain and suffering damages.

"In Texas, for example, every insurer but one has lowered liability premiums in 2005, and the last one soon could follow suit, said Texas Medical Assn. President Bohn D. Allen, MD. Meanwhile, West Virginia has seen an increase in new physicians and a decline in defense costs for liability insurance companies, and Ohio has seen a moderation of premium increases and two new insurers enter the market."

These are certainly welcome changes as TX, WV and OH were 3 of 20 states designated as being crises states as far as malpractice is concerned. Malpractice premiums were prohibitively expensive, physicians were retiring early and cutting back on high risk procedures, etc. I put down some of my thoughts on this article and on malpractice reform in general.

Click here for complete entry.Here is an article on the changes incurred by states that have enacted some sort of malpractice liability reform, primarily caps on recovery for pain and suffering damages.

"In Texas, for example, every insurer but one has lowered liability premiums in 2005, and the last one soon could follow suit, said Texas Medical Assn. President Bohn D. Allen, MD. Meanwhile, West Virginia has seen an increase in new physicians and a decline in defense costs for liability insurance companies, and Ohio has seen a moderation of premium increases and two new insurers enter the market."

These are certainly welcome changes as TX, WV and OH were 3 of 20 states designated as being crises states as far as malpractice is concerned. Malpractice premiums were prohibitively expensive, physicians were retiring early and cutting back on high risk procedures, etc.

As with most physicians, my mind flashes on malpractice liability virtually every work day. It's not so much that it forces me to practice better medicine, it doesn't. I'm by nature a fairly meticulous, inquisitive and engaged physician. I may be guilty of a bit of self-delusion but I truly think that if there were no such thing as a malpractice suit, I would be just as careful, just as dilligent.

That is not to say that I would practice the same. I like most physicians I know are occasionally guilty of ordering tests and imaging studies and pursuing work-ups of patients that we know in our hearts will be fruitless and unnecessary. We sometimes do this however, to protect ourselves from malpractice suits. Sad but true. Certain patients just seem to put out "red flags" by their lack of trust, their anger or their obsession that "there's just something wrong with me."

There have been issues raised about the perceived poor quality of care in the military healthcare system where the ability to sue for malpractice is sharply curtailed. However, I've never seen any substantive data to demonstrate any differences in quality from the civilian sector. I do know that the military has been going to great lengths to improve quality and has sought independent, civilian JCAHO accreditation in its many medical facilities although it is not required to do so.

I have mixed feelings about tort reform in medicine. I do believe that some regions in the U.S. are in malpractice quagmires because of the phenomenal cost of litigation in those areas. The problem is complex, emotional and expensive.

I am a strong believer in noneconomic "pain and suffering" caps in malpractice. So many judgements in malpractice are capricious and outrageous. When an insurance carrier is looking at a potentially unlimited judgement primarily in noneconomic damages, the inclination to settle even very good cases is hard to resist.

To me, the purpose of such caps is not so much to discourage the filing of strong malpractice cases as to remove the lottery-like atmosphere. The economic damages to a person injured by malpractice are relatively easy to calculate fairly. The costs of rehabilitation, lost wages, medical care, nursing costs, etc. are definable numbers. No tort reform laws I'm aware of limit these kinds of damages.

Noneconomic damages however are vague, subjective and emotional. Limiting them to $250,000 or $500,000 still leaves tremendous room for "making the patient whole". Incidently, many courts have adjudicated the constitutionality of such caps and affirmed them.

I was somewhat in favor of the largely republican federal bill (which was voted down in the senate) known by the somewhat disingenuous title of the "Patient's First Act of 2003". While I did like the federal noneconomic damages cap, some of the clauses seemed designed specifically to limit the pursuit of solid, legitimate cases.

For example, I saw no reason to limit attorney legal fees. The only real benefit to such a law would be to make any case regardless of legitimacy less desirable for the lawyer.

Another feature of the bill was to limit the liability of each physician to his share of the total liability. In other words, if a physician was deemed 10% responsible for a $1 million judgement, he could only be compelled to pay $100,000. The way things are in most states, the plaintiff can recover 100% of the judgement from whoever has the most money (or coverage). I strongly agree with features like this but I wouldn't mind seeing them applied to all torts.

The bill also sought to require expert witnesses to actually be experts in the field for which they would be testifying. This would appear to be a no-brainer but...

In short, I am in favor of any type of reasonable tort reform that promotes patient safety and facilitates recovery of damages to patients truly injured by their doctors. At the same time it should limit the incredibly costly expenses of litigating meaningless, frivilous lawsuits.

My legal friends may have different ideas.