Hostname: page-component-78c5997874-s2hrs Total loading time: 0 Render date: 2024-11-07T21:09:12.263Z Has data issue: false hasContentIssue false
  • English
  • Français

Currents in Contemporary Bioethics: Health Care Reform and Medical Malpractice Claims

Published online by Cambridge University Press:  01 January 2021

Mark A. Rothstein
Get access Rights & Permissions [Opens in a new window]

Extract

The seemingly interminable debates about health care reform in the last few years have focused mainly on health care access, quality, and cost. Debates on the medical malpractice component of the issue have focused almost entirely on cost. The familiar arguments in favor of limiting liability include the financial and health costs of defensive medicine; decreased physician supply in certain specialties and geographic areas; excessive awards; and high transaction costs, including attorney and expert witness fees. The equally familiar arguments in favor of maintaining tort liability include the need to promote civil justice, deter substandard care, identify incompetent practitioners, and encourage systemic quality improvement.

Numerous studies have explored the possible effects of damage caps and other measures on malpractice premiums, health care costs, and other financial endpoints. One relatively under-examined aspect of the issue is how federal legislation expanding access to health care might alter the number of medical malpractice claims. With the enactment of the Patient Protection and Affordable Care Act of 2010 (PPACA), it is especially appropriate to consider what effect, if any, the new law will have on the rate of medical malpractice claims.

Type
JLME Column
Information
Journal of Law, Medicine & Ethics , Volume 38 , Issue 4 , Winter 2010 , pp. 871 - 874
Copyright
Copyright © American Society of Law, Medicine and Ethics 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

See, e.g., Mello, M. M., Chandra, A., Gawande, A. A., and Studdert, D. M., “National Costs of the Medical Liability System,” Health Affairs 29, no. 9 (2010): 1569–1576.CrossRefGoogle Scholar
See, e.g., Black, B., Hyman, D. A., Silver, C., and Sage, W. M., “Defense Costs and Insurer Reserves in Medical Malpractice and Other Personal Injury Cases: Evidence from Texas, 1988–2004,” American Law and Economics Review 10, no. 2 (2008): 185–245; Mello, M. M. and Brennan, T. A., “Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform,” Texas Law Review 80, no. 7 (2001–2002): 1595–1637.CrossRefGoogle Scholar
Pub. L. No. 111–148 (2010), as amended by the Health Care and Education Reconciliation Act, Pub. L. No. 111–152 (2010).Google Scholar
Congressional Budget Office, Health Care, available at <www.cbo.gov/publications/collections/health.cfm> (last visited July 30, 2010).+(last+visited+July+30,+2010).>Google Scholar
See Sage, W. M. and Kersh, R., eds. Medical Malpractice and the U.S. Health Care System (New York: Cambridge University Press, 2006); Hyman, D. A. and Silver, C., “Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid,” Vanderbilt Law Review 59, no. 4 (2006): 1085–1136.CrossRefGoogle Scholar
The number of lawsuits resulting in an award for the plaintiff, including jury awards and settlements, is too narrow and does not reflect the substantial costs in defending even the cases in which the defendant prevails.Google Scholar
Hickson, G. B., Clayton, E. W., Githens, P. B., and Sloan, F. A., “Factors That Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries,” Journal of the American Medical Association 267, no. 10 (1992): 1359–1363.CrossRefGoogle Scholar
Hiatt, H.H. et al., “A Study of Medical Injury and Medical Malpractice,” New England Journal of Medicine 321, no. 7 (1989): 480–484; Hickson, et al., supra note 7; Levinson, W. et al., “Physician-Patient Communication: The Relationship with Malpractice Claims among Primary Care Physicians and Surgeons,” Journal of the American Medical Association 277, no. 7 (1997): 553–559: Relis, T., “‘It's Not About the Money!’: A Theory on Misconceptions of Plaintiffs' Litigation Aims,” University of Pittsburgh Law Review 68, no. 2 (2007): 341–385; Vincent, C., Young, M., and Phillips, A., “Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action,” The Lancet 343, no. 8913 (1994): 1609–1613.CrossRefGoogle Scholar
Kraman, S. S. and Hamm, G., “Risk Management: Extreme Honesty May Be the Best Policy,” Annals of Internal Medicine 131 (1999): 963–967; Kachalia, A. et al., “Liability Claims and Costs Before and After Implementaion of a Medical Error Disclosure Program,” Annals of Internal Medicine 153, no. 4 (2010): 213–221; Liebman, C. B. and Hyman, C. S., “A Mediation Skills Model to Manage Disclosure of Errors and Adverse Events to Patients,” Health Affairs 23, no. 4 (2004): 22–32; Mastroianni, A. C. et al., “The Flaws in State Apology' Laws Dilute Their Impact on Malpractice Suits,” Health Affairs 29 no. 9 (2010): 1611–1619; Mello, M. M. and Gallagher, T. H., “Malpractice Reform - Opportunities for Leadership by Health Care Institutions and Liability Insurers,” New England Journal of Medicine 362, no. 15 (2010): 1353–1356.CrossRefGoogle Scholar
One well known study found that 53 percent of the compensation for medical injuries involved future health care costs. Studdert, D. M., Brennan, T. A., and Thomas, E. J., “Beyond Dead Reckoning: Measures of Medical Injury Burden, Malpractice Litigation, and Alternative Compensation Models from Utah and Colorado,” Indiana Law Review 33, no. 4 (2000): 1643–1686. Although beyond the scope of this article, it is interesting to consider whether health care reform, besides potentially limiting the number of medical malpractice case filings, will also serve to limit the amount of the awards.Google Scholar
Burstin, H. R., Johnson, W. G., Lipsitz, S. R., and Brennan, T. A., “Do the Poor Sue More? A Case-Control Study of Malpractice Claims and Socioeconomic Status,” Journal of the American Medical Association 270, no. 14 (1993): 1697–1701.CrossRefGoogle Scholar
Id., at 1700–01.Google Scholar
Twedt, S., “Medical Malpractice Suits Drop but Take a Toll,” Pittsburgh Post-Gazette, July 18, 2010, available at <www.post-gazette.com/pg/10199/1073354–28.stm> (last visited July 29, 2010).+(last+visited+July+29,+2010).>Google Scholar
National Practitioner Data Bank, available at <http://www.npdb.hrsa.gov/index.html>, compiled in Public Citizen, “Medical Malpractice Payments Fall Again in 2009,” at App., available at <www.citizen.org> (last visited August 13, 2010).,+compiled+in+Public+Citizen,+“Medical+Malpractice+Payments+Fall+Again+in+2009,”+at+App.,+available+at++(last+visited+August+13,+2010).>Google Scholar
Best, A. M., “Solid Underwriting Undercut by MPLI's Investment Losses,” Best's Special Report, April 27, 2009, quoted in Hunter, J. R., Cassell-Stiga, G., and Doroshow, J., “True Risk: Medical Liability, Malpractice Insurance and Health Care,” at 12, available at <www.insurance-reform.org/TrueRiskF.pdf> (last visited August 13, 2010). (last visited August 13, 2010).' href=https://scholar.google.com/scholar?q=Best,+A.+M.,+“Solid+Underwriting+Undercut+by+MPLI's+Investment+Losses,”+Best's+Special+Report,+April+27,+2009,+quoted+in+Hunter,+J.+R.,+Cassell-Stiga,+G.,+and+Doroshow,+J.,+“True+Risk:+Medical+Liability,+Malpractice+Insurance+and+Health+Care,”+at+12,+available+at++(last+visited+August+13,+2010).>Google Scholar
See generally Institute of Medicine, Crossing the Quality Chasm: A New Health System for the 21st Century (Washington, D.C.: National Academies Press, 2001); Schoenbaum, S. S. and Bovbjerg, R. R., “Malpractice Reform Must Include Steps to Prevent Medical Injury,” Annals of Internal Medicine 140, no. 1 (2004): 51–53.Google Scholar
See Carrier, E. C., “Physicians' Fears of Malpractice Lawsuits Are Not Assuaged by Tort Reforms,” Health Affairs 29, no. 9 (2010): 1585–1591.CrossRefGoogle Scholar