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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.

     

    Renewed federal efforts at liability reform

    Many ob/gyns in particular and physicians in general have justifiable concerns about the potential for reduced access to care, contraction of Medicaid eligibility and decreased support for maternal, child, and reproductive healthcare accompanying the US House of Representatives American Health Care Act (AHCA). Yet the focus of the AHCA on the economic sustainability of our healthcare enterprise is much needed and long overdue and helps make the case for federal medical liability reform.

    Next: De-stressing ob/gyn

    As I have written in this column on what seems like countless occasions, US public and private expenditures for healthcare are wholly unsustainable. There are many reasons for our excessive medical costs including overutilization of technology, underutilization of primary care, aging and overweight populations, unrestrained medication costs, and bloated administrative expenses fed by burdensome regulations and reciprocal “gaming” of medical bills by both providers and payors. Moreover, defensive medicine adds at least $55 billion to our collective healthcare bill and perhaps much more; thus, it is a prime target for reform.8

    Led by Health and Human Services Secretary and orthopedic surgeon Dr Tom Price (R-GA), tort reform has suddenly become the focus of multiple House bills.9

    The major aims of these bills are:

    1. Creation of “safe harbors” for physicians who adhere to accepted practice guidelines. Any malpractice claim would be adjudicated by a panel of medical experts if the defendant claimed care fell within such an established pathway;

    2. Establishment of administrative health “tribunals” presided over by judges with requisite expertise. Plaintiffs would be required to prove a physician’s behavior was reckless to receive payment;

    3. A $250,000 cap on non-economic damages; and

    4. A host of other provisions long favored by organized medicine (eg, joint-and-several liability reform, reduced statutes of limitations, limits on attorney fees, periodic payments, and exposure of a plaintiff’s collateral sources of coverage, such as health insurance).

    To be fair, there is a limited “evidentiary base” and in some cases no evidence in support of several of these reforms (eg, limiting attorney fees, and collateral source rules).9 There are simply no data on the potential benefits of safe harbors, and many claims may be for care not covered by current, established guidelines. However, as evidence-based guidelines proliferate, such an approach has enormous potential for better care, lower costs, and greater fairness. Moreover, as noted above, there is strong evidence for the benefits of tight caps on non-economic damage9 such as the “Protecting Access to Care Act” which was recently passed by the House 218-210.

    Thus, we should strongly support bills containing these provisions.

    Take-home message

    For the first time in a long time there is at least the potential for truly meaningful medical liability reform from Washington. Unfortunately, there are many hurdles to be overcome, not the least of which is the expected deluge in trial lawyer lobby money targeting bills containing any limits on recovery or attorneys’ fees. In addition, beyond the rancor, partisanship and general ill will that exist between the major political parties, there are also serious policy conflicts emerging between the 2 Houses of Congress and within the GOP itself, which has experienced an unprecedented degree of internal division over healthcare policy—all of which could stymie medical liability and patient safety reform efforts. So, while such federal reform is possible it is not probable, and while we wait, let’s all redouble our efforts to ensure that all our patients are safe.

    References

    1. Mello MM , Studdert DM , Kachalia A. The medical liability climate and prospects for reform. JAMA. 2014 Nov 26;312(20):2146-55.

    2. Ridgely MS, Greenberg MD , Pillen MB , Bell J. Progress at the Intersection of Patient Safety and Medical Liability: Insights from the AHRQ Patient Safety and Medical Liability Demonstration Program. Health Serv Res. 2016 Dec;51 Suppl 3:2414-2430.

    3. Pettker CM , Thung SF, Lipkind HS, et al. A comprehensive obstetric patient safety program reduces liability claims and payments. Am J Obstet Gynecol. 2014 Oct;211(4):319-25.

    4. Carpentieri AM, Lumalcuri JJ, Shaw J, Joseph GF. Overview of the 2015 American Congress of Obstetricians and Gynecologists’ Survey on Professional Liability. Available at https://www.acog.org/-/media/Departments/ProfessionalLiability/2015PLSurveyNationalSummary11315.pdf?dmc=1&ts=20170617T1957092419 Accessed 6/17/2017.

    5. Yang YT, Mello MM, Subramanian SV, Studdert DM. Relationship between malpractice litigation pressure and rates of cesarean section and vaginal birth after cesarean section. Med Care. 2009 Feb;47(2):234-42.

    6. Marciano KR. Iowa governor signs medical malpractice reform into law. Available at http://marcianolegal.com/iowa-medical-malpractice-reform-law Accessed 6/17/2017.

    7. Saunders J. Malpractice damage caps struck down by Florida Supreme Court. Available at http://www.orlandosentinel.com/news/politics/political-pulse/os-malpracticedamages-20170608-story.html Accessed 6/17/2017.

    8. Mello MM , Chandra A, Gawande AA , Studdert DM . National costs of the medical liability system. Health Aff (Millwood). 2010 Sep;29(9):1569-77.

    9. Mello MM, Kachalia A, Studdert DM. Medical liability: Prospects for federal reform. N Engl J Med. 2017 May 11;376(19):1806-1808.

    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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