6. Require a claim to be screened and mediated
A plaintiff ’s claim would have to be evaluated by a screening panel before it could proceed to litigation. The panel would identify claims hat merit compensation and encourage early resolution of those claims. It also would encourage withdrawal or dismissal of non-meritorious claims.
7. Protect physicians who follow evidence-based guidelines
Health-care providers who follow guidelines based on solid evidence, and those who have legitimate justifications for departing from guidelines, would be protected from liability claims.
8. Allow the voluntary resolution of disputes
This proposal would motivate states to encourage the creation of other innovative systems to compensate individuals who are injured in the course of receiving health-care services.
9. Require expert witnesses to meet certain standards
This alternative would limit expert-witness standing to individuals who:
- are licensed and trained in the same specialty as the defendant
- have particular expertise in the disease process or procedure performed in the case
- have been in active medical practice in the same specialty as the defendant within 5 years of the claim or who have been taught at an accredited medical school on the care and type of treatment at issue.
10. Create catastrophic injury systems
These systems would establish a fund for individuals who have experienced bad outcomes. Birth injury funds are an example of this model.
Who’s on our side?
Congressional policy wonks give liability reform a thumbs up
In early 2010, the Medicare Payment Advisory Commission (MedPAC), a nonpartisan advisory counsel to the US Congress, identified three important ways that our current malpractice system harms the Medicare program and Medicare beneficiaries, the aged, and disabled:
- Medicare payments to providers include some liability costs (folded into hospital diagnosis-related group [DRG] payments; factored into physician fee schedule calculation)
- Defensive medicine drives up costs for Medicare
- Malpractice impairs the quality and safety of care to beneficiaries. That is, the current system does not improve patient safety.
MedPAC staff recommended that the commissioners urge Congress to pass government-subsidized malpractice reinsurance for providers who meet certain safety criteria or create a federal administrative adjudication process. The commissioners expressed an interest in alternatives to address the costs of medical malpractice, including ways to encourage states and providers to address medical malpractice in a manner most appropriate for them. However, when MedPAC returned to this topic at its next meeting later the same year, the commissioners mentioned medical liability only to dismiss it as an incidental issue in opening remarks.
The Congressional Budget Office (CBO) estimates that medical malpractice costs our health-care system $35 billion in direct costs, with billions more as a result of defensive medicine.
CBO has scored these medical liability reform proposals as providing significant savings to our federal budget:
- a $250,000 cap on subjective, noneconomic damages (with no limit on economic damages)
- collateral source rule allowing evidence of outside payments to be submitted in court
- a ban on subrogation by certain collateral sources
- caps on attorney contingency fees
- periodic payments of future damages
- a reasonable statute of limitations.
In addition, in 2011, CBO scored comprehensive medical liability reform as saving the federal government $62.4 billion over 10 years. As longtime Illinois Senator Everett Dirksen was known to say, “A billion here, a billion there, and pretty soon you’re talking real money.”
Many Republican congressional leaders “walk the walk”
Republicans have long claimed medical liability reform as their issue. And they walk the walk.
Representative Phil Gingrey, MD, of Georgia, an ACOG Fellow, has led the medical liability reform fight on Capitol Hill for a number of years. His bill, the Protecting Access to Healthcare Act (HR 5), which would have brought MICRA to the national level, was repeatedly passed by the Republican majority of the House of Representatives, only to be ignored by the Democrats controlling the Senate.
Again this year, Dr. Gingrey introduced legislation to protect physicians from unexpected liability. His Standard of Care Protection Act (HR 1473) would ensure that provisions of the Affordable Care Act (ACA) cannot be used to create new causes of action against medical professionals. HR 1473 would ensure that Medicare, Medicaid, and other federal programs that establish government standards and guidelines for health-care providers cannot be used to create new causes of action.
Federal health-care programs are changing to ensure that payment reflects quality of care. As a result, new payment rules, guidelines, and standards are being written into federal laws and regulations. HR 1473 would make clear that these cannot be used to define the applicable standard of care or duty of care in a medical liability lawsuit.
ACOG supports Dr. Gingrey’s bill, as well as a second, companion approach that would ensure that ObGyns who follow guidelines and standards of care developed by their medical society are protected from liability, with sensible exceptions for egregious harm and negligence.