For physicians tired of working under the constant threat of a malpractice suit, the signs of positive change are encouraging.
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First, President Donald Trump told a joint session of Congress in February that he was in favor of “legal reforms that protect patients and doctors from unnecessary costs that drive up the price of insurance.”
Second, Trump appointed Tom Price, MD, to head the U.S. Department of Health and Human Services. Price has been a vocal critic of the current malpractice system and authored bills to change it as a U.S. representative for Georgia’s 6th District.
Third, Republicans control both houses of Congress, and malpractice reform has typically been a cause championed by the GOP. Finally, Trump’s proposed budget contains a number of recommended malpractice liability reforms.
And physicians are certainly desperate for change. In a Medical Economics survey, 89% of doctors indicated they wanted the Trump administration to address tort reform, with 84% saying they feel pressured to practice defensive medicine and 87% saying they work under the constant threat of a lawsuit.
“If you have a system that is paid for by blame, even sometimes when a doctor has done nothing wrong, then it’s structured wrong,” says Susan Osborne, DO, a primary care physician in rural southwest Virginia.
Experts agree that malpractice tort reform is complicated, and despite the favorable environment for change, is anything but assured in the current tumultuous political environment. Here’s a closer look at the factors affecting reform efforts and what reform might look like if it comes to pass.
Is it time for malpractice reform?
A harsh reality of American medicine is that the majority of doctors will be sued for malpractice at least once in their lifetime. For some high-risk specialties like neurosurgeons, it’s practically a guarantee, according to a 2011 study published by the New England Journal of Medicine, which tracked lawsuits against 40,000 doctors for more than a decade.
“The lifetime risk of malpractice is substantive,” says Anupam Jena, MD, Ph.D., an author of the study and an internist and associate professor of healthcare policy at Harvard Medical School. “It’s hard for physicians not to think about it.”
Despite the high risk of being sued, malpractice claims are currently in a lull, with many physicians paying less for insurance than they paid five or even 10 years ago, says David Studdert, MPH, professor of medicine and law at Stanford University.
“Claims volume is not going up and the average value of claims is not going up, so the question raised is: ‘Why do tort reform now?’” Studdert says. “It’s actually a pretty good time; the alternative is to wait until there is a crisis, and no one really makes good policy under pressure.”
Malpractice tends to be cyclical, with a crisis arriving every 10 to 15 years, says Studdert. “The smart money is on another one in the next few years, but no one really knows why they happen,” he adds.
According to data from The Doctors Company, a medical malpractice insurer, the average premium for malpractice insurance was $15,000 in 2006 and $8,000 in 2016.
In 2006, the average number of claims per 100 doctors was nine; in 2016 it was seven. The average claim value in 2006 was $68,000, while in 2016 it was $100,000. (Note: The 2006 number adjusted for inflation is about $82,000.)
Jena says one reason that medical tort reform might gain traction is that most stakeholder agree that the system as currently constituted doesn’t work. Those who deserve compensation in a timely manner typically have to wait four to five years for a case to be resolved in court, and even those cases that settle before trial average two years to resolve.
“You want to compensate quickly, and those that are not hurt shouldn’t be compensated at all,” he adds. “The whole system should be fair, and most people agree that is not what we have in place now.”
Because malpractice is an insurance matter, states have had first crack at finding a solution. Thirty-three states have established some sort of cap on non-economic—i.e. pain and suffering—awards, but these have resulted in differing levels of risk exposure for insurance companies, often causing them to set widely varying premiums, depending on the state where a physician practices.
For example, Kansas has a $250,000 cap on non-economic damages, while Maryland has a cap of $770,000 that increases $15,000 annually. Malpractice insurance for internists in Kansas averaged $5,500 in 2016, while rates in Maryland averaged $14,200 annually, according to Houston-based insurance brokerage Arthur J. Gallagher & Co.
While the states may have oversight of the issue now, some experts see the need for a federal law to create nationwide uniformity. “Even though medical liability is a state law issue, given the role the federal government plays in healthcare, it is clear that Congress has a constitutional basis of redressing the issue,” says Sherman Joyce, JD, president of the American Tort Reform Association.
Mike Strazzella, JD, a healthcare lobbyist and practice group leader for federal government relations at the law firm of Buchanan Ingersoll & Rooney, says that state laws would only be pre-empted if they were less stringent than a federal law.