Medical Malpractice


Physicians have long sought an overhaul of the nation's tort system in the hope of reducing the financial and emotional costs involved with medical malpractice. The Affordable Care Act took a small step by funding demonstration projects to develop litigation alternatives. The law provides $50 million to states for 5-year grants in fiscal year 2011, which began on Oct. 1, 2010. The Obama administration said it will give preference to states that develop programs that improve access to liability insurance and improve patient safety by reducing medical errors.

Dr. Albert L. Strunk, deputy executive vice president of the American College of Obstetricians and Gynecologists, discusses the current malpractice environment and the impact of health reform.


Dr. Strunk: Any step that is undertaken to reduce the cost of litigation and improve determinations of good vs. bad medical care is a very good idea. Whether you think medically related litigation costs $11 billion or $22 billion or $60 billion a year, the figures are substantial, so we're very anxious to have trial or pilot programs go forward.

We are grateful for any impact from the Affordable Care Act, but I think that real innovation also is occurring apart from the grants. There is an increasing institutional and practitioner awareness that the way in which less-than-optimal outcomes occur requires attention to a constellation of factors. Personnel is only one element.

More and more, we accept the notion that we have to, in a way, pull ourselves up by our own bootstraps. While the 112th Congress may be more receptive to tort reform, primarily we have to look to the states for legislative solutions.


Dr. Strunk: The ob.gyn. specialty is somewhat unique within the context of the current tort system, in part because of the size of awards attached to neurologically impaired or neonatal encephalopathy types of cases. Because those cases allege primarily economic damages based on the life-care of an impaired infant, traditional tort reform involving caps on noneco-nomic damages are of little assistance.

In addition, there has been a good deal of judicial nullification of statutes of limitations in cases involving infants. So obstetricians today face a practice environment whereby simply being at the wrong place at the wrong time can literally cause economic ruin.

We know from survey results that the anxiety associated with this risk greatly influences the behavior of obstetricians and gynecologists, as does the cost and availability of liability insurance. The anxiety causes our physicians to leave obstetrics in their 40s, so there is a significant impact on the workforce. So we believe that defensive medicine and fear of litigation does add to our total health bill.


Dr. Strunk: We are, and it's quite a different approach that one takes. Most of the state initiatives tend to relate to traditional California MICRA (Medical Injury Compensation Reform Act)–style tort reform, addressing noneconomic damages through caps, as well as limiting contingency fees, for instance. The most successful initiative has been in Texas. The impact of the state cap on noneconomic damages – coupled with a constitutional amendment that prevented the courts from overturning the legislation – has resulted in a huge influx of doctors. Access to care, particularly in low-income populations, has been dramatically increased.

In the short term, caps on noneconomic damages are helpful in selected state environments. Some states are also exploring a contractual arrangement between the patient and the physician to provide for predispute voluntary binding arbitration. Another long-term goal would be the implementation of health courts.


Dr. Strunk: In terms of the grants that have been made, we are very supportive of a project in Missouri, which is going to focus on the quality of perinatal care and the way adverse perinatal events are managed in five Missouri hospitals. They are going to establish an evidence-based obstetrics practice model. We believe that the use of evidence-based guidelines and checklists increases patient safety and reduces risk.

The Carilion Roanoke Memorial Hospital Center has a planning grant to enhance teamwork and systems management, the goal being to improve the quality of obstetrical care and patient care, and reduce risk and liability. Team-based care, systems analysis, and systems solutions are essential. Most of the mishaps that occur in the delivery of care don't really relate to the negligence of a single person, notwithstanding what the tort system would have us believe. It is generally a constellation of factors.

Primarily, we have to look to the States for legislative solutions.


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