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    Is federal medical liability reform possible?

    With passage by the House of a bill capping noneconomic damages, there may be potential for meaningful tort reform from Washington.

    Over the past few years, progress has clearly been made with regard to the professional liability crisis. Between 2002 and 2013 the rate of paid claims per 1000 physicians fell from 18.6 to 9.9, an average decrease of 6.3% per year.1 Moreover, since 2007 median indemnity amounts paid have fallen and high-end awards have plateaued. Overall professional liability insurance rates have stabilized. This salutary state primarily reflects the improving economy and stock market valuations coupled with modest state-based reforms, but implementation of a wide range of patient safety programs has likely also had an impact. The Agency for Healthcare Research and Quality (AHRQ) Patient Safety and Medical Liability Demonstration Program has suggested such a linkage, particularly in obstetrical claims.2 Pettker and associates compared obstetrical liability claims at a single tertiary-care teaching hospital during 2 5-year periods (1998 to 2002 and 2003 to 2007), before and after implementing a rigorous patient safety program.3 Despite a stable statewide malpractice insurance market, this patient safety initiative resulted in a decline in median annual claims (1.31 to 0.64; P = 0.02), median annual payments per 1000 deliveries ($1,141,638 to $63,470; P < 0.01) and the median payout per case ($632,262 vs $216,815; P < 0.05).

    Ob/gyns still feeling the pain

    While these overall trends are reassuring, for ob/gyns professional liability insurance premiums costs continue to climb, albeit more modestly than a decade ago.1 But even more concerning, our medical liability crisis continues to contribute to burnout and adverse practice patterns. The 2015 American Congress of Obstetricians and Gynecologists (ACOG) Survey on Professional Liability noted multiple disturbing trends.4 Of the survey’s nearly 4300 respondents, 23.8% reported that fear of malpractice litigation had forced them to reduce numbers of high-risk obstetrical patients; 17.0% posited that it had increased their cesarean delivery rate; 13.6% had stopped offering trials of labor for vaginal birth after cesarean (VBAC); and 5.1% had stopped their obstetrics practice altogether. An astonishing 73.6% of ob/gyn respondents (average age 51.4 years) had experienced at least 1 liability claim during their career and the group averaged 2.59 claims per physician. Since the last ACOG liability climate survey in 2012, 40.5% had experienced 1 or more claims, two-thirds being obstetrical in origin, most often for neurological injury.

    Recommended: What to do and say when things go terribly wrong

    While survey data can be subject to selection bias, there is strong empirical evidence that intimidation caused by the potential for malpractice litigation increases cesarean delivery and lowers VBAC rates. Yang and colleagues examined US National Center for Health Statistics birth certificate data from 1991 to 2003 to correlate cesarean delivery and VBAC rates with malpractice pressure as measured by liability insurance premium costs and presence or absence of state-based tort reform.5 They observed that malpractice premiums were positively associated with primary cesarean delivery rates (beta = 0.16, P = 0.009), and negatively associated with VBAC rates (beta = -0.35, P = 0.01). They calculated that for every $10,000 decrease in premiums there would be a 1.45% increase in the VBAC rate and a 1.18% decrease in primary cesarean delivery rates. In addition, they observed that VBAC rates were significantly higher and primary cesarean delivery rates were significantly lower after individual states placed caps on noneconomic damages, with the greatest effects seen when caps were set at $250,000 or less.

    Limits of state-based reforms

    Driven by cost concerns and pressure from organized medicine, and commensurate with Republicans gaining control of the majority of state legislatures and governorships, a growing number of states have implemented tort reform including such caps on non-economic damage. For example, Iowa’s Governor Terry Branstad recently signed a law mandating certificates of merit, strengthening expert witness standards, and capping non-economic damages at $250,000.6 Indeed, 35 states have now implemented some form of cap on non-economic damages.

    These wins at the state level, however, can be ephemeral as recently demonstrated in my home state of Florida. There, the Supreme Court recently ruled unconstitutional a law limiting non-economic damages in medical malpractice cases.7 Sadly this law, passed in 2003 while Jeb Bush was governor, had greatly helped stabilized what was one of the severest professional liability insurance crises in the nation. Ironically, it was the law’s very success that led to the judges’ decision. The majority opinion read in part, “We further conclude that because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps … and alleviating this purported crisis.”7

    The limits of state based-reforms, ascendency of the GOP over all 3 branches of the federal government and the pressing need to contain costs in the Republican healthcare reform plan have all led to renewed hopes for a federal solution to our long twilight struggle against a patently unjust, inequitable, and fundamentally flawed tort system.

    NEXT: Renewed federal efforts at liability reform

    Charles J Lockwood, MD, MHCM
    Dr Lockwood, Editor-in-Chief, is Dean of the Morsani College of Medicine and Senior Vice President of USF Health, University of South ...

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    • UBM User
      As is to be expected, Dr. Lockwood does an excellent job in summarizing the current state of affairs. He knows all too well from his tenure in Philadelphia that not all areas of the country can claim stability. Yes, premiums seem to be level - this is good news - but this is analogous to treating a trauma patient with a major blood vessel injury, isolating the vessel and placing a clamp on it. This will likely save the patient from imminent hypovolemic death, but does not guarantee recovery and return to normal functioning. As pointed out, there are many states where the practice of medicine continues to be under siege. Here in my state of NJ, as a result of statewide action and with the support of the MSNJ, the OBG Society, the NJ Section of District III, patient petitions and with support of some legislators, the New Jersey Medical Care Access and Responsibility and Patients First Act (Patients First Act or Act), L. 2004, c. 17, codified in part at N.J.S.A. 2A:53A–41 was passed. Among some of the reforms was requirement of a Certificate of Merit provision. Among other stipulations, a plaintiff is required to post a COM authored by an expert in the "same" specialty as the defendant physician. But as we learned "same" may not necessarily mean "same." In fact, it took a specific case and opinion by the NJ Supreme Court see NICHOLAS v. MYNSTER et al., to define exactly what the meaning of "same" is. While the statute that created a CON requirement is reported to have discouraged some filings, our specialty is still under assault because of its unique nature. It continues to be the subject of legal terrorism even in the face of defensible actions by OBGs. Hence, it is not heretofore amenable to peripheral tinkering. Furthermore and regrettably, organized medicine, and particularly our specialty societies are not in a position to directly intervene to affect change for fear of being accused of restraint of trade and collusion and conspiracy to thwart our legal system and the public's right to seek economic redress, instead, they talk about advocacy and peripheral solutions. It's like calling clergy to the hospital bed of a sick patient and praying for a miracle. I raise this awareness because at the national, as well as local level, the discourse should not, in my opinion, focus on just limiting non-economic damages. Rather, what the Congress could do is offer a solution an alternative, the possibility of a cure, that will ultimately save our specialty without limiting an injured patient from seeking redress. There is a potential cure, albeit theoretical at this point, that can even garner the support of Democrats in Congress. That is, to offer a different system where injured patients can seek redress. This could be accomplished by passage of a statute to authorize HHS to offer grants to states willing to establish alternative and binding dispute resolution tribunals. Regardless of what they could be called, these venues, presided by a judge (preferably an MD JD) conversant with the issues of patient care, would control the admission of evidence and expert opinion without a jury (in order to remove any emotional overlay, which, as we know, is of particular concern in Ob litigation) that can drive process to seek the truth instead of driving the decision to settle because patient injury is subject to emotional instead of rational conclusions by lay adjudicators. Additionally, and just as important, the Bill would state that an affirmative defense can be asserted by the defendant physician by following a published standard of care. In this way, a plaintiff's expert would have to show that the published standard of care is faulty by providing peer reviewed rebuttal at least equal to generally accepted published standard. This segregates causation from maloccurrence. Ultimately, this would be particularly powerful in our specialty in defending against the two most common areas ob litigation, ie. neurological impairment due to failure to recognize a compromised intrapartum fetus or in the case of birth injuries (especially Erb's palsy). Finally, this venue neutralizes the ability to state and/or submit opinion not supported by any evidence whatsoever. There are numerous examples that my colleagues reading this can attest to and recount of rogue experts offering opinions inconsistent with the reality of practicing clinical medicine. We have read of experts testifying tht FHR tracings can "predict" neurological impairment in utero, or that risk factors are sufficient to "predict shoulder dystocia" reliably to preclude SVD and that a birth attendant alone is responsible for having "caused an Erb's palsy without regard to other factors." there are many others. Finally, if we are serious about creating a safer healthcare experience for our patients and improving the healthcare environment in which we all work with the goal of decreasing physician suicides and "burnout" which, as Dr. Lockwood noted, is particularly troubling in our specialty. We should insist on adopting a new system where we can learn from medical errors and not be afraid to report them and that does justice to all of society and not just a few. The current system is not capable of doing so.

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