Want Lower Healthcare Costs? Consider Medical Liability Reform

csnsGuest post written on behalf of the Council of State Neurosurgical Societies’ (CSNS) Communications and Education Committee

Maya A. Babu, MD, MBA (left)
Neurosurgical Resident, Mayo Clinic
Vice-Chair, CSNS Communications and Education Committee
Rochester, MN

Brian V. Nahed, MD, MSC (right)
Assistant Professor of Neurosurgery, Massachusetts General Hospital / Harvard Medical School
Chair, CSNS Communications and Education Committee
Boston, MA

gavelMedical liability and the need for tort reform have been surprisingly absent in current healthcare policy debates. Our current medical liability system evolved as a mechanism to compensate patients when there is a proven breach in the standard of care as a direct or proximate cause of an individual’s injury. Many now agree, however, that the system has ceased to function for both our patients and for healthcare providers. In addition, the medical liability system is an important factor in driving up healthcare costs. The nonpartisan Congressional Budget Office (CBO) estimates that comprehensive tort reform would save the federal government approximately $60 billion.

Physicians from every specialty — neurosurgeons, in particular — can attest to defensive medicine practices in response to the current liability climate. While many state legislatures have enacted medical liability reforms — including reasonable limits on non-economic damages — with considerable benefit, federal efforts to enact similar measures have failed. A piece in JAMA on the medical liability climate and prospects for reform suggests that alternative, non-traditional approaches, may have promise as they address the high costs related to litigation. These include:

  • Communication-and-resolution programs;
  • Notification and apology laws;
  • Safe harbor legislation;
  • Judge-directed negotiation; and
  • Administrative compensation systems.

The National Practitioner Data Bank and many state regulatory bodies have yet to adapt their registry requirements to transparency-based systems in which reports of errors and settlements may indicate that care is becoming safer, not more dangerous as process improvements are being adopted.

Given the current partisan climate in politics, tort reform has become increasingly difficult to imagine. In California, for example, there was the highly contentious Proposition 46. This called for an increase in the state’s cap on noneconomic damages, despite the fact that for over 40 years Medical Injury Compensation Reform Act’s (MICRA) reforms have ensured a highly stable system. Ultimately, following a heated debate primarily between trial lawyers, medical associations and the business community, two-thirds of California voters rejected Prop 46, keeping in place this beneficial, pro-patient reform measure.

Given the failure of legislative action, physicians and insurers have increasingly sought alternative approaches to mitigate risk, including communication-and-resolution programs which recommend engaging patients. These programs are highly appealing for patient-centric physicians. At their core, these programs ensure that if something unexpected occurs, communication, compassion and a genuine commitment to preventing future harm, are valuable. Developing process improvements should be a part of the solution to improving the current flaws in the medical liability system, which will benefit patients in the future.

Neurosurgeons believe improving the quality and efficiency of healthcare must include medical liability reforms that can address the current inefficient, punitive and costly medical liability system.

References:

1. Michelle M. Mello, JD, PhD, MPhil1,2; David M. Studdert, LLB, ScD, MPH1,2; Allen Kachalia, MD, JD3 The Medical Liability Climate and Prospects for Reform November 26, 2014, Vol 312, No. 20 >

2. William M. Sage, MD, JD Medical Malpractice Reform:  When Is It About Money? Why Is It About Time? November 26, 2014

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