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Medical Liability Reform and The Tort System

Written by Harry M. Roth, Esquire

Last month an interesting article was published about Medical Liability Reform in The New England Journal of Medicine.   https://healthpolicyandreform.nejm.org/?p=14235&query=homeWhile it is common political rhetoric to cite the tort system as a driver for higher health care spending, decreased access to medical care and increased overhead in the forms of insurance policy premiums and costs for tests ordered defensively, the NEJM published an article which set about evaluating the effectiveness of the various strategies for tort reform as well as their implications for those strategies that ought to be considered.

The authors begin at the beginning, namely they point out that any assessment of the effectiveness of malpractice liability reforms first requires an identification of the relevant metrics to be considered.  Most, they point out, are a byproduct of physician and insurer complaints about the high cost of malpractice insurance coverage, the number of suits that lack merit and the unpredictability of jury awards to name a few.  On the other side of the aisle are the patients and their attorneys who complain about the lack of access to the tort system, the delay and expense to achieve compensation and the disparate results of those similarly injures.  Best estimate cited by the authors reflect that only 2 to 3% of patients injured by negligence file claims and that only half of those claimants achieve financial recoveries.   The authors conclude:

“First, evaluations of traditional tort reforms have remained heavily focused on metrics related to liability costs, with most care-related measures receiving relatively short shrift. Second, the evidence reveals that, with few exceptions, traditional tort reforms have not proved to provide many improvements in these liability metrics.”

The authors break down the traditional tort reforms including economic caps, elimination of joint and several liability, capping attorney’s fees among others and conclude:  “There is some evidence that caps on damages modestly increase the supply of physicians in a state, although study findings have been mixed.14,29,38-41 There is moderately strong evidence that limits on attorneys’ fees,41,42 JSL reform,41,42 collateral-source rule reform,41,51,52 and periodic payment41,42 do not significantly affect physician supply.”

Importantly, the authors look to legislative initiatives that have shifted from controlling liability costs to enhancing patient safety and reducing waste in health care.  These, they observe are focused on adverse-event prevention and improving the liability environment by improving communication between health care providers and patients regarding treatment plans, use of in hospitals of “package of evidence-based practices to reduce injuries and improve communication on perinatal care teams.

While these approaches are being evaluated, the common themes of improved communication between health care providers and their patients and implementations of policies and procedures to improve the delivery of health care and the communication among the team providing that care would seem to be important, positive steps towards reducing unexpected and avoidable medical injuries and thus foster the delivery of high quality health care.

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