The issue of medical liability reform is back in the headlines since President Obama said he would consider some type of reform to curb frivolous lawsuits. But physicians say there are plenty of political obstacles to making meaningful changes to the tort system.
One of the major hurdles, according to Texas Medical Association president Susan Rudd Bailey, will be getting a bill passed by the Democratic-controlled Senate. Democrats have historically opposed capping noneconomic damages, otherwise known as pain and suffering awards, which have been at the heart of the tort reforms passed in Texas and California.
“This is no slam dunk,” said Dr. Bailey, an allergist in Fort Worth.
The Texas Medical Association is one of more than 100 state and national medical organizations that have endorsed new federal legislation aimed at reducing medical liability lawsuits. The Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act, H.R. 5, is modeled after California's Medical Injury Compensation Reform Act (MICRA), which has been in place for about 30 years. The new federal legislation would place a $250,000 cap on noneconomic damages and would require that medical liability suits must be filed within 3 years of the injury in most cases.
The cap on noneconomic damages is the cornerstone of the Texas medical liability reform law enacted in 2003. The cap, Dr. Bailey said, has helped to reduce premiums and improve access for patients. For example, 90% of the state's physicians have seen their malpractice insurance rates cut by 30% or more, according to the Texas Medical Association.
In 2001– before the legislation was enacted – the number of newly licensed physicians in Texas was at a decade-long low of 2,088. By 2008, that number had risen to 3,621. And since enactment, the number of physicians practicing in previously scarce specialties including obstetrics, orthopedic surgery, neurosurgery, emergency medicine, and cardiovascular surgery has increased, according to figures from the Texas Medical Association.
Dr. Alex Valadka, a neurosurgeon at the Seton Brain and Spine Institute in Austin, said the 2003 tort law has dramatically improved the practice climate in the state. Anecdotally, Dr. Valadka says he's getting fewer calls from other physicians seeking consultations on complicated cases because there are more neurosurgeons to take on the work. Dr. Valadka said he hopes that similar reforms can be passed at the federal level, but he said he's doubtful that President Obama's vision for tort reform will look like the Texas statute.
So far, the President has been light on specifics. In 2009, as Congress was considering the Affordable Care Act, the President told the American Medical Association that he did not favor capping noneconomic damages because it can be unfair to patients.
The AMA has been pushing to get medical liability reform back at the top of the congressional agenda after it was left out of the ACA.
Dr. Ardis Dee Hoven, AMA chairwoman, recently testified before the House Judiciary Committee about the pressure physicians face from malpractice suits.
An AMA survey found that 61% of physicians age 55 and older had been sued at least once in their careers, with an average of 1.6 claims per doctor. But certain specialties, like obstetrics-gynecology and surgery, had much higher rates.
Many of the lawsuits are without merit, Dr. Hoven testified to the committee. The AMA survey found that 65% of claims were dropped, dismissed, or withdrawn. But it still cost about $20,000 per claim to defend the suits that were ultimately dropped, according to the report.
The American College of Physicians, which also supports the HEALTH Act, is calling on Congress to consider other reforms to reduce defensive medicine, such as health courts. The ACP is asking Congress to pass legislation that would allow for pilot testing of health courts on a national scale.
Health courts are a no-fault system in which cases are heard by specially trained judges with access to independent medical experts. Health court judges would be able to authorize awards based on the damages incurred.