Medical Malpractice Reform: Don’t Believe the Hype

Laura Medford-Davis, MDRobert Wood Johnson Clinical Scholar

University of Pennsylvania

Malpractice

Overview

1. Definition: What is Malpractice Reform? 2. Map: Status of Reform in the US3. Outcomes of Malpractice Reform

Malpractice (Tort) Reform• Tort = Compensation for injury• Reform = Rules regarding Tort Claims

Mechanisms of Reform• Damage Caps–Economic damages–Non-economic damages• Pain and suffering, anguish• Punitive and exemplary

Mechanisms of Reform• Attorney Fees– Fee limits– Loser pays fees

• Qualifications for expert testimony• Statute of limitations• Pre-trial screening• Burden of proof

Alternative Models• No-Fault Compensation– New Zealand– Sweden– Denmark

• Federal Tort Claims Act– Veterans Affairs– Federally Qualified Health Centers– Indian Health Services– Public Health Service

Malpractice: What’s at stake?

• $3.6 billion paid in 2012 on 12,142 claims ($296,000/claim)–93% settled out of court–31% of claims for wrongful death–33% of claims for misdiagnosis

Malpractice: What’s at stake?

• Additional $4.1 billion litigation fees• Liability Insurance Premiums:

$3,375-$215,000/year• Defensive Medicine $46 billion/year–28% of orders

• Access to Care

Defensive Medicine - Physician Concern• More referrals to ER and orders for

advanced imaging• No correlation with tort reform

Defensive Medicine: Liability Premiums• Increased costs when treated by a

physician with a higher liability premium

Annual Risk of Claim by Specialty

Source: NEJM 2011. 365(7):629-36.

Cumulative Lifetime Risk by Specialty

Source: NEJM 2011. 365(7):629-36.

Overview

1. Definition: What is Malpractice Reform? 2. Map: Status of Reform in the US3. Outcomes of Malpractice Reform

Top Malpractice Payouts (2013)

1. New York $763 M2. Pennsylvania $316 M3. California $223 M4. New Jersey $207 M5. Florida $204 M

Top Malpractice Payouts (2013) Per Capita1. New York (#4) $382. Pennsylvania (#6) $253. California (#1) $64. New Jersey (#11) $235. Florida (#3) $10

Top Malpractice Payouts (2013) Per Capita1. New York (#4) $382. Pennsylvania (#6) $253. California (#1) $64. New Jersey (#11) $235. Florida (#3) $10

Texas (#2) $3

Damage Caps in the United States

Legend<$500,000$500K-$1M>$1MSliding Scale

Pre-Trial Screening

Patient Compensation Funds

Overview

1. Definition: What is Malpractice Reform? 2. Map: Status of Reform in the US3. Outcomes of Malpractice Reform

Reform Outcomes: Damage Caps• Reduce liability premiums by 17%–Only when $500,000 or less

• Do not decrease health insurance premiums

Reform Outcomes: Other Limits• Nothing besides damage caps makes

a difference• Gross Negligence => No Change in

Defensive Medicine–CT/MRI utilization –ER charges (3.6% in Georgia only) –Admission rates

Physician Availability• Surgeons more likely to start practice in

areas with damage caps and lower malpractice premiums

• Texas reform in 2003–Physicians have increased by 8% more than

population –46+ counties in Texas have added a

specialist physician

Summary• Malpractice reforms limit patients’ ability to

bring claims for injury• Malpractice risk and reform vary depending

on location and specialty• Surgeons are at more risk than primary care• Damage Caps decrease malpractice insurance

premiums• Reform does not decrease healthcare costs or

defensive medicine• Unknown impact on patient safety

Discussion• Available studies are limited• Laws are constantly changing• Who does reform benefit?

Questions/Comments