The medical malpractice crisis - Is there a solution? Symposium introduction and overview

Journal of Legal Medicine

Volumn 27, Issue 1, 2006, Pages 1-16

  LeBlang, Theodore R ^a,b  

^a SOUTHERN ILLINOIS UNIVERSITY SCHOOL OF MEDICINE   (United States)

^b SOUTHERN ILLINOIS UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

COST; HEALTH CARE; HEALTH CARE ACCESS; HEALTH CARE PERSONNEL; HEALTH CARE POLICY; HEALTH SERVICE; HUMAN; INSURANCE; LAW; LEGAL ASPECT; MALPRACTICE; MEDICAL ERROR; NEW ZEALAND; PHYSICIAN; REVIEW;

COMPENSATION AND REDRESS; HEALTH SERVICES ACCESSIBILITY; HUMANS; LIABILITY, LEGAL; MALPRACTICE; UNITED STATES;

EID: 33644745129     PISSN: 01947648     EISSN: 1521057X     Source Type: Journal    
DOI: 10.1080/10826070500528892     Document Type: Review

References (95)

1. See, e.g., U.S. DEP'T OF HEALTH, EDUC., & WELFARE, MEDICAL MALPRACTICE: REPORT OF THE SECRETARY'S COMMISSION ON MEDICAL MALPRACTICE 123 (1973) (providing an analysis of medical malpractice in the early 1970s, including its societal implications, alleged causes, and proposed resolutions). Secretary's Commission member Charles A. Hoffman suggests uniform state adoption of remedial legislation for legal doctrines "adverse" to the practice of medicine.
2. See, e.g., AM. MED. ASS'N SPECIAL TASK FORCE ON PROF'L LIAB. & INS., PROFESSIONAL LIABILITY IN THE '80s: REPORTS 1, 2, AND 3, at 3-24 (1984);
3. U.S. CONG., OFFICE OF TECH. ASSESSMENT, IMPACT OF LEGAL REFORMS ON MEDICAL MALPRACTICE COSTS 1-2 (1993);
4. STEPHANIE M. SPERNAK & PETER P. BUDETTI, AGENCY FOR HEALTH CARE POLICY & RESEARCH, COMPENDIUM OF STATE SYSTEMS FOR RESOLUTION OF MEDICAL INJURY CLAIMS 5-8 (1991).
5. See generally NANCY K. BANNON, AM. MED. ASS'N, AMA TORT REFORM COMPENDIUM (1989) (summarizing state medical liability tort reform statutes and state supreme court cases ruling on the constitutionality of these statutes).
6. See Thom Wilder, Facing National "Crisis" AMA Seeks State/Federal Medical Liability Reform, 11 BNA's HEALTH L. REP. 950, 950 (2002);
7. Lorraine McCarthy, Doctors Lobby State Lawmakers for Help on Malpractice Premiums, 10 BNA's HEALTH L. REP. 674, 674 (2001);
8. see also PHYSICIAN INSURERS ASS'N OF AM., MEDICAL MALPRACTICE CLAIM EXPENSES: ANNUAL INCREASES OUTPACING INDEMNITY GROWTH 1 (1997) (discussing legal reforms aimed at reducing the costs of defending malpractice claims; seventy percent of all malpractice claims result in no payment to the plaintiff).
9. PETER P. BUDETTI & TERESA M. WATERS, MEDICAL MALPRACTICE LAW IN THE UNITED STATES 27 (May 2005), available at http://www.kff.org/insurance/7328.cfm (last visited Aug. 11, 2005). Concerns over who should evaluate the adequacy of care led to controls on the requirements to serve as an expert witness, to the establishment of pre-trial screening panels with some level of medical expertise, and to alternative dispute resolution procedures such as arbitration and mediation to minimize the likelihood of ending up in court. Id. at 27. But perhaps more significantly, many states implemented statutory caps on damages and attorney compensation, as well as rules governing how damages would be paid and by whom. Id.
10. Nat'l Conference of State Legislatures, Medical Malpractice Tort Reform, available at http://www.ncsl.org/standcomm/sclaw/medmaloverview.htm (last visited Aug. 28, 2005) [hereinafter Conference].
11. Tanya Albert & Jessica Diehl, Liability Premium Shock Spreads, AM. MED. NEWS, Jan. 31, 2005, at 1, 1. Only 12 states had increases of that magnitude in 2001.
12. Tanya Albert & Jessica Diehl, Liability Premium Shock Spreads, AM. MED. NEWS, 2005, 1. Id.
13. Tanya Albert & Jessica Diehl, Liability Premium Shock Spreads, AM. MED. NEWS, 2005, 1. Id. This is nearly double the 18 states that experienced such increases in 2001.
14. Tanya Albert & Jessica Diehl, Liability Premium Shock Spreads, AM. MED. NEWS, 2005, 1. Id.
15. AM. MED. ASS'N. MEDICAL LIABILITY CRISIS MAP, at http://www.ama-assn.org/ go/crisismap (last visited Aug. 28, 2005). At least 20 states have been described as being in a "full blown medical liability crisis."
16. AM. MED. ASS'N. MEDICAL LIABILITY CRISIS MAP, at http://www.ama-assn.org/ go/crisismap Id.
17. But see Amitabh Chandra et al., Abstract, The Growth of Physician Medical Malpractice Payments: Evidence from the National Practitioner Data Bank, 24 HEALTH AFF. 1186 (2005) (average payments for medical malpractice verdicts and settlements during the period from 1999 to 2003 grew 52%, approximately 4% per annum; however, this rate of growth - which parallels increases in the cost of health care - may suggest overemphasis on data regarding frequency and severity of awards).
18. See NAT'L ASS'N OF INS. COMM'RS, MEDICAL MALPRACTICE INSURANCE REPORT: A STUDY OF MARKET CONDITIONS AND POTENTIAL SOLUTIONS TO THE RECENT CRISIS 21 (2004), at http://www.naic.org/models_papers/papers/MMP-OP-04-EL.pdf.
19. Id. at 21; see also CONG. BUDGET OFFICE, LIMITING TORT LIABILITY FOR MEDICAL MALPRACTICE 3 (Jan. 8, 2004), available at http://www.cbo.gov/ftpdocs/ 49xx/doc4968/01-08-MedicalMalpractice.pdf ("payments of claims are the most significant costs that malpractice insurers face, accounting for about two-thirds of their total costs").
20. JAY ANGOFF, FALLING CLAIMS AND RISING PREMIUMS IN THE MEDICAL MALPRACTICE INSURANCE INDUSTRY i (2005), available at http://www.centerjd.org/ANGOFFReport. pdf. Because of the overall surge in malpractice premiums with no corresponding surge in claims payments during the last five years, the leading malpractice insurers have increased their surplus by more than a third in only three years, and they are now charging more for malpractice insurance than either their actual payments in malpractice cases or their estimated future payments in malpractice cases would justify. Id. at ii-iii. The Physician Insurers Association of America disagreed with this study and its methodology, stating the report "is flawed because it makes many incorrect assumptions."
21. Mike Norbut, Report Hit for Linking Premium Costs, Claims, AM. MED. NEWS, Aug. 8, 2005, at 21, 21.
22. Bernard Black et al., Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002, 2 J. EMPIRICAL LEGAL STUD. 207, 210 (2005).
23. Bernard Black et al., Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002, 2 J. EMPIRICAL LEGAL STUD. 207 (2005). Id.
24. Press Release, Health Coal. on Liab. & Access, Poll Shows Americans Want Congress to Support Comprehensive Medical Liability Reform: Americans Believe Access to Health Care Threatened (July 25, 2005), available at http://www.hcla.org/2005-HCLA-Poll-Factsheet.pdf.
25. Factsheet, Health Coal. on Liab. & Access: Medical Liability Reform: Why It's Good for Patients (Feb. 4, 2003), available at http://www.hcla.org/ factsheets/2003-129-patientsatrisk1.pdf.
26. See, e.g., MARK DEATON, THE ILLINOIS HOSPITAL ASSOCIATION SUPPORTS A REASONABLE RANGE FOR AWARDING NON-ECONOMIC DAMAGES 1 (Apr. 7, 2005), at http://www.ihatoday.org/issues/liability/talk/testdeaton.pdf;
27. AM. COLL. OF OBSTETRICIANS & GYNECOLOGISTS, PRESERVING PATIENT ACCESS TO WOMEN'S HEALTH CARE: THE FACTS AND FIGURES BEHIND THE LIABILITY CRISIS, avaiable at http://www.acog.com/departments/dept_notice.cfm?recno= 11&bulletin=2688 (last visited Aug. 28, 2005);
28. Am. Ass'n of Neurological Surgeons, Medical Liability Reform Brochure (2004), available at http://www.aans.org/shared_pdfs/ReformBrochure.pdf;
29. Neurosurgeons to Preserve Health Care Access, The Problem, available at http://www.neuros2preservecare.org/problem.asp (last visited Aug. 28, 2005).
30. Div. of Advocacy & Health Policy, Am. Coll. of Surgeons, Advocacy and Health Policy: Medical Liability Reform, available at http://www.facs.org/ahp/ proliability.html (last visited Aug. 28, 2005).
31. See Rachel Silverman, So Sue Me: Doctors Without Insurance, WALL ST. J., Jan. 28, 2004, at D1 (discussion of the recent trend in physicians "going bare" and "self-insuring");
32. Tanya Albert, Tort Crisis Gamble: Physicians Weigh Odds of Going Bare, AM. MED. NEWS, Apr. 5, 2004, at 1, 1.
33. Harry R. Maier et al., Written Testimony Submitted to Members of Illinois House of Representatives Judiciary I Committee 1 (Apr. 7, 2005), available at http://www.ihatoday.org/issues/liability/talk/writtentest.pdf.
34. MICHELLE M. MELLO ET AL., EFFECTS OF A MALPRACTICE CRISIS ON SPECIALIST SUPPLY AND PATIENT ACCESS TO CARE 7 (2005), available at http://medliabilitypa. org/research/files/mello0605.pdf. It is of further interest that, in Pennsylvania, where liability insurance premiums have escalated significantly, the practice of defensive medicine is prevalent. This has significant implications with respect to cost, access to care, and the technical and interpersonal quality of health care. In this regard, one common form of defensive medicine is to cut back on performing procedures that are complex or prone to complication.
35. See David M. Studdert et al., Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment, 293 J.A.M.A. 2609, 2609-13 (2005). This problem affects other high-risk specialists throughout the country.
36. See David Katz et al., Emergency Physicians' Fear of Malpractice in Evaluating Patients with Possible Acute Cardiac Ischemia, 46 ANNALS EMERG. MED. 525 (2005). When defensive medical practices do not directly affect access to care, they may well affect quality of care, by placing patients at risk for unnecessary interventions.
37. David Katz et al., Emergency Physicians' Fear of Malpractice in Evaluating Patients with Possible Acute Cardiac Ischemia, 46 ANNALS EMERG. MED. 525 (2005). Id.
38. David Dranove & Anne Gron, Effects of the Malpractice Crisis on Access to and Incidence of High-Risk Procedures: Evidence from Florida, 24 HEALTH AFF. 802, 808 (2005).
39. Michelle M. Mello & Carly N. Kelly, Effects of a Professional Liability Crisis on Residents' Practice Decisions, 105 OBSTETRICS & GYNECOLOGY 1287, 1289-90 (2005).
40. Id. at 1293.
41. See Daniel P. Kessler et al., Impact of Malpractice Reforms on the Supply of Physician Services, 293 J.A.M.A. 2618, 2623 (2005). The authors observe that empirical evidence supports the conclusion there is "greater growth in physician supply in states that adopted reforms directly limiting liability than in states that did not."
42. Daniel P. Kessler et al., Impact of Malpractice Reforms on the Supply of Physician Services, 293 J.A.M.A. 2618 (2005). Id.
43. Mike Norbut, House Passes Liability Reform Bill - Once Again, AM. MED. NEWS, Aug. 15, 2005, at 2, 2. The bill is known as the Help Efficient, Accessible, Low-cost, Timely Healthcare Act (HEALTH).
44. Mike Norbut, House Passes Liability Reform Bill - Once Again, AM. MED. NEWS 2005, 2. Id. Among other things, this proposed legislation would cap non-economic damages at $250,000, place limitations on attorneys' fees, permit introduction of evidence in court regarding collateral source benefits, allow for periodic payments of future damages, and either limit or block the award of punitive damages. If enacted, the federal law would preempt nonconforming state laws.
45. Conference, supra note 5.
46. Id.
47. Id.
48. NICHOLAS M. PACE ET AL., RAND INST. FOR CIVIL JUSTICE, CAPPING NON-ECONOMIC AWARDS IN MEDICAL MALPRACTICE TRIALS: CALIFORNIA JURY VERDICTS UNDER MICRA xix-xx (2004), available at http://www.rand.org/pubs/monographs/ 2004/RAND_MG234.pdf. Two hundred fifty-seven medical malpractice trials were examined during a five-year period and it was established that, without the MICRA cap, $421 million would have been paid out, but after judges applied the cap and reduced excess awards, the total paid out in these cases was $295 million.
49. Kenneth E. Thorpe, The Medical Malpractice "Crisis" : Recent Trends and the Impact of State Tort Reforms, 23 HEALTH AFF. W4-20, W4-26 (Jan.-June Supp. 2004).
50. Daniel Kessler et al., Impact of Malpractice Reforms on the Supply of Physician Services, 293 J.A.M.A. 2618, 2624 (2005);
51. see also William E. Encinosa & Fred J. Hellinger, Abstract, Have State Caps on Malpractice Awards Increased the Supply of Physicians?, 24 HEALTH AFF. 1186, 1186-87 (2005) (noting, from 1985 to 2000, counties in states with a cap on non-economic damages had 2.2% more physicians per capita, and rural counties in states with a cap had 3.2% more physicians per capita; rural counties in states with a $250,000 cap had 5.5% more surgical specialists per capita and 5.4% more obstetrician/gynecologists than states with a cap greater than $250,000).
52. Mike Norbut, Three Crisis States Report Improvement Since Tort Reforms, AM. MED. NEWS, Mar. 28, 2005, at 1, 1. Non-economic damage awards in these states were capped in Ohio at $350,000, in West Virginia at $250,000, and in Texas at $250,000. Id. at 2.
53. LEWIS LASKA & KATHERINE FORREST, FAULTY DATA AND FALSE CONCLUSIONS: THE MYTH OF SKYROCKETING MEDICAL MALPRACTICE VERDICTS 3 (2004), available at http://www.commonwealinstitute.org/reports/CI-MedMalpracticeReport-Oct20041.pdf.
54. See, e.g., Neil Vidmar, Medical Malpractice and the Tort System in Illinois, 93 ILL. BAR J. 340, 343-48 (2005) (observing that caps will not result in smaller payouts in most cases and the recent spike in malpractice liability insurance premiums in Illinois was not caused by runaway jury verdicts).
55. Patrick J. Kelley, The Medical Malpractice Insurance Crisis: What Can Be Done?, HEALTH CARE LAW., Mar. 2005, at 5, 6;
56. see also Peter P. Budetti, Tort Reform and the Patient Safety Movement: Seeking Common Ground, 293 J.A.M.A. 2660, 2661 (2005) ("[M]edicine's 30-year pursuit of piecemeal tort reform has had some results, but not all the consequences have been positive and serious problems with the quality of medical care have not been ameliorated.");
57. David M. Studdert et al., Medical Malpractice, 350 NEW ENG. J. MED. 283, 288 (2004) ("Some conventional tort reforms appear to be effective in reducing litigation costs and stabilizing insurance markets, but they are not designed to remedy the fundamental failings of the malpractice system.").
58. Paul Barringer, Health Courts: A Better Approach to Malpractice Reform, 14 BNA's HEALTH L. REP. 877, 877 (2005).
59. Paul Barringer, Health Courts: A Better Approach to Malpractice Reform, 14 BNA's HEALTH L. REP. 877 (2005). Id.
60. Id. at 878. The need for health courts is a high priority issue for Common Good chair and founder, Philip K. Howard. The home page for Common Good may be found at http://cgood.org/index.html.
61. For an interesting rebuttal of the "six beliefs" Mr. Howard has articulated about medical malpractice, see David Hyman & Charles Silver, Believing Six Improbable Things: Medical Malpractice and "Legal Fear," 28 HARV. J.L. & PUB. POL'Y 107 (2004). The six beliefs (or "improbable things") are as follows: (1) the tort system causes physicians and other health care providers to hide their mistakes; (2) physicians and other health care providers once dealt with mistakes more openly; (3) liability encourages substantial defensive medicine; (4) liability undermines access to needed medical services; (5) liability creates an "extortion lottery"; and (6) "a specialized medical court would be an improvement." Id. at 108. Certainly, Hyman and Silver have been critical of the current medical malpractice system; but as for Philip Howard's views, they conclude: "The kindest thing that can be said about his position (and each of his six sub-claims) is the old Scottish verdict: not proven." Id. at 118.
62. Pub. Act No. 94-677 (Ill. 2005).
63. Id. § 101(4). "Limiting non-economic damages is one of these significant reforms designed to benefit the people of the State of Illinois." Id.
64. The Illinois Supreme Court was not receptive to comprehensive tort reform legislation enacted in 1996, through Pub. Act No. 89-7. This law was held unconstitutional. See generally Best v. Taylor Mach. Works, 689 N.E.2d 1057 (Ill. 1997) (holding Pub. Act No. 89-7 unconstitutional); Ferdon v. Wis. Patients Comp. Fund, 701 N.W.2d 440 (Wis. 2005) (the Supreme Court of Wisconsin struck down state damage caps); Judd v. Drezga, 103 P.3d 135 (Utah 2004) (upholding the constitutionality of state malpractice damage caps).
65. Maxwell Mehlman, The Shame of Medical Malpractice, 27 J. LEGAL MED. 17 (2006).
66. He notes two exceptions - the "strike suit," which is filed with the intention of extracting a monetary settlement from the defendant, and the "shotgun" suit, in which multiple individuals and entities are sued initially, with noninvolved clinicians eventually being dismissed from the lawsuit.
67. Mehlman, supra note 42, at 22.
68. Id.
69. Id. at 24.
70. Id. at 25.
71. Id. at 25-26.
72. Id. at 27.
73. Id.
74. Id. at 28.
75. Id.
76. Frank McClellan, Medical Malpractice Law, Morality and the Culture Wars: A Critical Assessment of the Tort Reform Movement, 27 J. Legal Med. 33 (2006).
77. McClellan explains that, based on media reports about particular cases, some individuals believe a malpractice crisis exists and runaway juries, driven by ignorance and emotion, represent the cause. He follows by pointing out that a contrasting group refuses to believe a medical malpractice crisis exists in the United States, claiming manipulation of statistics by insurance companies is responsible for concerns regarding availability and affordability of malpractice liability insurance. Id. at 41.
78. Id. at 50.
79. Id. at 43 (quoting COMM. ON HEALTH LITERACY INST. OF MED., HEALTH LITERACY: A PRESCRIPTION TO END CONFUSION 37 (2004)). McClellan reminds us that, as the doctrine of informed consent evolved in the courts, it was predicated on autonomous decision making and the affirmation of human dignity - a recurrent theme in his article.
80. Id. at 45.
81. McClellan adds that being a person of color continues to make individuals more likely a target of neglect or abuse by the health care system. Id.
82. Id. at 48.
83. Id. at 53.
84. Id. at 52.
85. Id.
86. Id. at 52-53. McClellan adds that we should be suspect and sensitive to any tort reform proposals that will result in vulnerable and marginalized groups bearing the greatest cost of any tort reform that is justified on the basis of empirical studies and economic data. According to him, if we do not carefully assess the importance of human dignity as a goal of the law of medical malpractice, we will confront the same problem that we discovered when the country enthusiastically embraced managed care as the economic savior of the health care delivery system, only to discover that the worth of human beings was being lost in the process.
87. Marie Bismark & Edward Dauer, Motivations for Medico-Legal Action: Lessons from New Zealand, 27 J. LEGAL MED. 55 (2006).
88. Marie Bismark & Edward Dauer, Motivations for Medico-Legal Action: Lessons from New Zealand, 27 J. LEGAL MED. 55 (2006). Id.
89. Id. at 59.
90. They elaborate: "[T]he New Zealand compensation and complaint process exists simultaneously with a state-run medical and disability insurance system that is radically different from the patchwork of coverage policies in the United States." Id. at 68.
91. Id. at 63. Moreover, "New Zealand health professionals are able to offer apologies unconstrained by fear of litigation." Id.
92. Id. at 62. The authors note, however, in recent years, America has begun to move in this important direction, with at least 16 states having adopted "apology laws." These laws protect physicians from having their genuine expressions of grief or sympathy construed as admissions of liability that will later be recounted at trial. Id. at 63-64.
93. Id. at 64.
94. Id. at 66.
95. Id. at 70.