ACP calls for major reform of medical liability in the post-ACA era

Fear of litigation is driving up the cost of healthcare, and it should be the catalyst to fix a broken medical liability system.

In a position paper released yesterday by the American College of Physicians (ACP) during its annual meeting in Orlando, Florida, ACP President Molly Cooke, MD, FACP, explains, “The current system just doesn’t work. It’s unfair to patients as physicians modify their practices in ways they hope will reduce the risk of being sued, the patient physician relationship is harmed. The current system spends enormous amounts of money to compensate a small minority of injured patients.”

The position paper, titled “Medical Liability Reform: Innovative Solutions for a New Health Care System,” outlines nine points that support liability reform, including caps on noneconomic damages, limitations on punitive damages, and the expanded testing of the use of court systems to decide health-related legal claims.

“Perhaps more promising is the testing of innovative liability protection models, such as health courts, enterprise liability, safe harbor protections, and disclosure laws, which seek to break through the political impasse and create a system that encourages the prevention of errors, improved patient safety, and timely resolution of legitimate claims,” Cooke says.

While preventing errors is the goal, doctors' fear of liability is undermining the patient-physician relationship, adds Tom Tape, MD, chair of the ACP’s public health policy committee.

Cost is another major driver. In 2009, the Congressional Budget Office estimated that clinicians incurred some $35 billion in direct medical liability costs associated with premiums, settlements, awards and administrative awards.

“The experience of being sued is as pervasive an anxiety as the prospect of being sued, and it causes significant psychological stress to physicians,” Cooke says. Evidence suggests that traditional tort reforms, particularly noneconomic damage caps, may help reduce liability claims and healthcare costs. But it is not enough, the ACP contends.

“Because no single program or law by itself is likely to achieve the goals of improving patient safety, ensuring fair compensation to patients when they are harmed by a medical error or negligence, strengthening rather than undermining the patient-physician relationship, and reducing the economic costs associated with the current system,” Cooke says. “A multifaceted approach should allow for innovation, pilot testing and further research on the most effective reforms.”

Next: The nine approaches outlined in the ACP's position paper

The nine approaches outlined in the position paper include:

• Continued focus on patient safety and prevention of medical errors.

• Passage of a comprehensive tort reform package, including caps on noneconomic damages. The ACP position calls for a $250,000 cap on noneconomic damages, and a $50,000 cap on noneconomic damages for a physician performing life-saving care.

• Minimum standards and qualifications for expert witnesses.

• Oversight of medical liability insurers.

• Testing, and if warranted, expansion of communication and disclosure programs. For example, the ACP would like to see broad legal protections to ensure apologies from physicians and other healthcare workers are inadmissible in court. Tape adds, “Our view of the evidence suggests that when physicians disclose errors of unanticipated outcomes to their patients, provide an explanation and express sympathy, the numbers of claims filed and attorneys fees drop. Furthermore, disclosure may foster a culture of honesty and sustain a positive patient-physician relationship and improve physician morale.”

• Pilot-testing a variety of alternative dispute resolution models.

• Developing effective safe harbor protections that improve quality of care, increase efficiency, and reduce costs. In fact, safe harbor protections should be granted when clinicians provide care consistent with evidence-based guidelines, the position paper says.

• Expanded testing of health courts and administrative compensation systems.

• Research into the effect of team-based care on medical liability, as well as testing of enterprise liability and other products that protect and encourage team-based care.

“It’s imperative in a post-Affordable Care Act healthcare landscape, all stakeholders work together to fix the nation’s medical liability system for the sake of patients and providers alike,” the ACP adds.