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06 January 2017

GOP Lawmakers & Experts Disagree On Medical Malpractice “Epidemic”

Spurred by President-elect Donald Trump’s emphatic rejection of Obamacare, key Republican policy makers have begun to push for sweeping healthcare reforms. Beyond repealing and replacing the Affordable Care Act, top GOP legislators, including U.S. Representative Tom Price, Trump’s pick for Secretary of Health and Human Services, have ramped up their support for medical malpractice reform.

Medical Malpractice Claims Aren’t Killing Healthcare, Experts Say

Advocates of “tort reform” say that medical malpractice lawsuits are a fundamental threat to the US healthcare system, forcing insurance premiums to skyrocket and driving doctors out of business. The solution? In the Empowering Patients First Act, a bill that he’s introduced to the House every session since 2009, Price suggests three different strategies for tort reform:

  • impose a federal three-year statute of limitations on medical malpractice lawsuits
  • cap non-economic damages, like pain and suffering, at $250,000
  • create “administrative healthcare tribunals,” panels of physicians that would review lawsuits before they reach the civil court system

There’s only one problem with Price’s plan, as Chad Terhune of Kaiser Health News writes in the Washington Post. Medical malpractice lawsuits aren’t out of control. Neither are medical malpractice insurance premiums, at least if the words of industry experts are to be believed. The rate of medical malpractice claims has been cut in half over the last 14 years, according to the Doctors Company, a malpractice insurance company. And physicians are paying less for that insurance than they did in 2001, even when you don’t adjust for inflation. In fact, “it’s a wonderful time for doctors looking for coverage, and it’s never been better for insurers,” says Michael Matray, editor at Medical Liability Monitor.

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Even more importantly, the current proposals for tort reform have nothing to say about keeping patients safe from medical errors. In a recent British Medical Journal report, researchers at Johns Hopkins University estimated that medical errors – which include instances of malpractice and negligence – claim over 250,000 American lives every year. Tort reform advocates rarely address these often-preventable tragedies. “What strikes me about these current proposals,” says Michelle Mello, a law professor at Stanford University, “is that they really represent the agenda of medical professionals, which is all about limiting liability. To take any malpractice reform seriously, it has to offer something to improve the situation of patients and lead to safer outcomes.”

Medical Professionals Push For Malpractice Reforms

As nominee for the country’s highest healthcare position, Representative Tom Price has received resounding endorsements from the American Medical Association and the American Academy of Orthopaedic Surgeons, according to healthcare reporter Leigh Page in Medscape’s Business of Medicine blog. And calls for tort reform are already gaining ground in multiple states. Medical Justice, a North Carolina group established to “prevent, deter, and respond to frivolous medical malpractice suits,” is currently lobbying lawmakers in six states to overhaul their malpractice systems entirely.

The group believes that medical malpractice claims should be taken away from judges, juries and the civil justice system. In place of the current framework, Medical Justice advocates for a malpractice system based on the structure used to settle workers’ compensation claims. Instead of passing through the courts, claims of doctor negligence would be decided by panels of practicing physicians. As founder Jeff Segal told Nashville’s NewsChannel 5, “a person would request that their case be investigated. This then gets reviewed by specialists in the same relevant field – so if it’s an orthopedic case, it’d be reviewed by three orthopedic surgeons.”

Segal envisions his proposal, which is set to be considered by Tennessee’s legislature this year, as a way to save doctors and patients years of time and thousands in legal fees. Andy Spears, however, isn’t convinced. Spears, executive director for consumer rights group Tennessee Citizen Action, doesn’t think doctors will take an aggressive position in holding their peers accountable for medical errors. “Doctors are protecting doctors, and that’s not a great system,” Spears said in a recent interview with Nashville Public Radio.

Malpractice Reform On Table In Tennessee Legislature

Spears has other doubts about the push for tort reform in Tennessee. In his mind, groups like Medical Justice are being guided by a hidden motive, one that goes well beyond minimizing medical malpractice insurance premiums.

In 2011, Tennessee joined a growing number of states that limit the amount of damages available to medical malpractice victims in civil lawsuits. As written, Tennessee’s law caps “non-economic” damages, which include things like pain and suffering, at $750,000. But recent years have seen Tennessee courts call the limitation of non-economic damages into question, according to the Chattanooga Times Free Press. In a 2015 case, Hamilton County Circuit Court Judge W. Neil Thomas ruled that the state’s $750,000 cap on civil damages violated Tennessee’s constitution. Juries should be able to award damages as they see fit, Judge Thomas argued, without interference from the legislature.

This decision rankled tort reform advocates, Spears says, but instead of defending the damages cap on constitutional grounds, medical groups are now trying work outside the legislative process entirely. If Tennessee institutes an alternative system to resolve medical malpractice claims, doctors will be free to write their own rules. Questioned by Nashville Public Radio, a spokesperson for Medical Justice denied that the group’s call for a new malpractice framework was an attempt to bypass the civil justice system.

 

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