It’s a conundrum. There seems to be no doubt about the need for medical liability reform—in fact, there is wide-spread support for it. And yet....
Four years after Captain Chesley “Sully” Sullenberger saved a planeload of passengers during an emergency landing—the “miracle on the Hudson”—he’s become a national champion of medical liability reform. In a recent interview with Politico, Sullenberger equated the 200,000 lives estimated to be lost each year due to medical errors to “20 jetliners crashing per week,” a situation he insists would close airports and ground flights until the problem was solved. But these 200,000 deaths cause little more than a ripple of concern, he claims.1
Among the solutions he proposes is “a whole different approach to reviewing medical errors, figuring out what’s behind them, not just blaming doctors and nurses.”1
Captain Sullenberger is discovering the difficult reality we’ve experienced for too many years: Solutions just don’t come very fast to medical liability reform, despite wide-spread support for it.
At the American Congress of Obstetricians and Gynecologists (ACOG), our campaign for medical liability reform has focused, as always, on patients, using the campaign line: “Who will delivery my baby?” ACOG supports caps on noneconomic damages and other reforms, such as those contained in the California Medical Injury Compensation Reform Act (MICRA), the gold standard for medical liability reform. We will continue to push for national MICRA reform until we’ve won that important protection for all ObGyns and their patients.
Until we reach that goal, we’re working to accomplish meaningful steps to liability reform where we can, including testing state alternatives. And our colleague organizations? Many of them, once insisting on federal adoption of MICRA or nothing at all, now actively support meaningful alternatives, too.
What do we want?
Proposals for tort reform, based on California’s MICRA statute, include:
- mandatory periodic payments of all future damages exceeding $100,000
- a $250,000 ceiling on noneconomic damage awards
- a requirement that claims must be filed within 2 years of the date by which the alleged injury reasonably should have been discovered but in no event more than 4 years from the time of the alleged injury. In the case of alleged injury to children under 4 years of age, claims must be filed by the child’s 8th birthday.
- limits on punitive damages, with 50% of punitive damage awards going to a state disciplinary fund
- limits on attorney contingency fees
- reductions in awards based on the amount paid from another source, such as health or disability insurance
- a requirement for “clear and convincing evidence” rather than the usual “preponderance of evidence” when a health-care professional who provided delivery services but not prenatal care is sued
- alternative systems for dispute resolution.
10 alternative reforms
Good ideas include:
1. Require a certificate of merit from the plaintiff
This proposal would require the plaintiff to file an affidavit with the court to demonstrate that the case has merit before the complaint can move forward. Certificates would necessitate the written opinion of a legally qualified health-care provider affirming that the defendant failed to meet the care standards that would be followed by a reasonably prudent health-care provider—and that this failure caused or directly contributed to the damages claimed.
2. Facilitate early settlement offers
Under this idea, a physician or hospital would be allowed to offer economic damages to an injured party without involving the courts. This offer would not constitute an admission of liability and would be inadmissible if a lawsuit were later filed in the case. Physicians would have an incentive to make a good-faith offer as early as possible after the injury is discovered, and patients would have an incentive to accept legitimate offers of compensation. Early-offer programs would require the injured party to meet a higher burden of proof for alleged negligence if that party chooses to reject the offer and file a lawsuit.
3. Create health-care courts
Health-care courts would allow for a bench or jury trial presided over by a specially trained judge to exclusively hear medical liability cases. Such courts have the potential to correct severe deficiencies in the current medical justice system and to reduce health-system errors and improve patient safety.
4. Allow a physician to say, “I’m sorry”
This proposal would encourage physicians to directly discuss errors and injuries with patients, to apologize and outline corrective action. Such discussions would be inadmissible if a patient later files a lawsuit.
5. Establish medical review panels
Any claim against a physician would be reviewed by a panel of experts who would provide an opinion on whether the physician failed to act within the relevant standards of care.