Malpractice 2017: Do we need reform?
State reforms driving lawsuit decline
A combination of state reforms and patient safety initiatives are fueling the lawsuit down slide, said Paul A. Greve Jr. senior vice president/senior consultant for Willis Towers Watson Health Care Practice and coauthor of the 2016 MLM Survey report.
More than 25 states now have laws that enforce caps on noneconomic damages in medical liability cases, and in the last 15 years, a large majority have upheld such limits, Mr. Greve said. In addition, a number of states require a certificate of merit before suits can move forward, which mandate that a qualified physician verify that a defendant’s actions were likely negligent.
Patient safety programs such as internal patient safety committees, enhanced provider education, safety protocols, and communication and resolution programs, are also making an impact.
,“There have been many efforts toward thinking innovatively about how we should be compensating patients more fairly and more quickly,” said Harvard’s Dr. Jena, who practices at Massachusetts General Hospital. “There are early disclosure programs that many hospitals have adopted as a movement toward that goal. The system is evolving.”
The high expense of filing a medical malpractice lawsuit is another factor detouring lawsuits, Mr. Greve added.
“It’s very expensive for [plaintiffs’ attorneys] to pursue these cases,” he said. “They have to invest a large amount of money into them and they can’t afford to take cases that have questionable liability, or they’re going to end up shelling out a lot of money and not getting anything in return.”
Malpractice system remains broken
While lawsuit and premium data paint a positive picture, the medical malpractice system remains dysfunctional for doctors and patients, said PIAA’s Mr. Stinson.
A majority of medical malpractice claims against physicians are determined to be nonmeritorious yet an average lawsuit takes roughly 4 years to resolve, he noted. Suits against doctors are dismissed by the court 54% of the time across all specialties, and among cases that go to trial, 80% end in the physician’s favor, according to a 2012 study by Dr. Jena and colleagues (JAMA Intern Med. 2012 Jun. 11 doi: 10.1001/jamainternmed.2012.1416)
“We think that’s a huge amount of resources both in time and money and human capital to get poured into cases where no payment is ever deemed appropriate,” Mr. Stinson said. “We would like to see [malpractice] reforms in part because we think you can weed out some of these claims in advance, so more of the resources can be used to determine whether or not there was negligence and if so, making that patient whole as fast as possible.”
Regardless of declining claims, most physicians will still be sued in their lifetime, Dr. Jena said. By age 65, 75% of physicians in low-risk specialties have faced a malpractice claim, and 99% of doctors in high-risk specialties have been sued, according to a 2011 study by Dr. Jena and colleagues (N Engl J Med. 2011 Aug. 18. doi: 10.1056/NEJMsa1012370)
“What really matters for physicians is not only whether they win or lose a malpractice suit, but whether they are sued in the first place,” Dr. Jena said. “Lawsuits happen quite often and over the course of a physician’s career they are quite common. So whether or not we’re in a state of malpractice crisis or not, the lifetime risk for physicians is quite real.”
The cost of defending claims continues to rise, noted Richard E. Anderson, MD, chair and CEO of The Doctors Company. At the same time, multi-million dollar malpractice verdicts have become more common.
“There’s still way too much malpractice litigation,” Dr. Anderson said. “The majority of it is fruitless, and the total cost burden borne by physicians has not decreased as much as the frequency because of the ongoing increase in severity.”
“The bottom line is defensive medicine is a huge and growing cost to all Americans,” he said. “We’re all on the hook for America’s rising health care bills. And as my increasingly infirm Baby Boomer generation gets older and weaker and sicker, those bills are going to rise that much faster. So the notion advanced by some so-called experts that we can nonetheless afford to spend a half trillion dollars a year or more on largely unnecessary testing driven in significant part by fear of litigation and giant outlier verdicts seems rather inane, and it suggests perhaps that those experts aren’t so expert.”
