- - Wednesday, July 13, 2022

The soaring rate of inflation has focused the attention of most Americans on higher prices for essentials such as food and gasoline, but increases in health care costs may not be far behind unless changes are finally made to our medical malpractice tort system.

Many consumers may only have a passing knowledge of medical tort through high-profile tabloid cases, such as the recent $50 million suit one former supermodel has brought against the proprietor of a cosmetic treatment known as CoolSculpting. But they should be aware that up to 10 cents of every dollar they pay for health care actually covers malpractice insurance that physicians must pay to defend themselves from often frivolous lawsuits. Even after the push for health care reform over the last 12 years, the trial bar has largely been able to obstruct efforts to reform the broken medical liability system. It remains one of the greatest challenges confronting physicians and health care providers across the nation today.

Many physicians today practice “defensive medicine,” which drives up the cost of care by forcing them to order procedures and referrals that may be unnecessary but provide protection against future litigation. In an already stressed health care system, we can ill-afford to drain such resources that could otherwise be used for medical research or to increase the patient capacity of existing facilities.

Abuse of the medical tort system may also lead to practitioner shortages in many states and reduce access to care for vulnerable patients. An American Medical Association survey of new physicians in Illinois, for example, found that nearly half of them planned to relocate to a different state. Two-thirds of those who planned to relocate cited the medical liability environment in Illinois as an important or very important consideration in their decision.

Another AMA survey, meanwhile, found that that 49.7% of obstetricians/gynecologists made changes to their practice due to the fear of liability claims and litigation. The changes included decreases in the number of high-risk patients accepted and decreases in the number of deliveries, both detrimental effects on women’s health. The net effect of the medical liability system on these physician behaviors will only compound the post-COVID-19 problem of shortages in the health care workforce across the nation.

Of course, malpractice litigation doesn’t happen all by itself. “Anyone who denies there is a crisis in medical malpractice is probably a trial lawyer,” said former President Barack Obama years ago when campaigning for office in Illinois. As president, he changed his tune, but the role of the plaintiff’s bar has been a driving force behind the explosion in medical liability litigation over the years.

Fortunately, many states are working to address the problem with reforms that are showing evidence of success. States that have imposed caps on noneconomic damages have maintained a positive liability climate for their practitioners, with research showing that such a move has led to improved access to care for patients, lower medical liability costs for providers, and lowered healthcare costs overall.

Some states, such as Virginia, have gone even further and placed a cap on the maximum amount of damages a plaintiff can recover. In 2010, the state’s trial lawyer association, medical society and hospital association came together and agreed to an aggregate malpractice cap for 20 years that has provided long-term predictability and stability in medical liability insurance.

The Manhattan Institute’s John P. Avlon has proposed some other options that could also be considered. Placing medical malpractice cases before judges or special commissions instead of juries, thereby professionalizing the entire process, would be helpful. Also, imposing “loser pay” rules in malpractice cases — similar to those used in Canada and the United Kingdom — would provide a disincentive for frivolous lawsuits. Programs to encourage more provider transparency on the disclosure of medical mistakes, combined with training of health care practitioners in proactive actions that can be taken with a patient, such as formal apologies and no-cost corrective actions, would likewise be helpful.  

Finally, not every patient complaint need result in a lawsuit. Patients also have recourse through state licensing authorities if there has been a violation of regulation or statute. By filing a complaint with a state licensing board for investigation, action can be taken to suspend or terminate a practitioner’s license to practice for egregious offenses. Results of board disciplinary actions are posted on state licensure websites and also provided to the National Practitioner Data Bank maintained by the U.S. Department of Health and Human services which can be used to ensure such bad actors never practice medicine again.

The bottom line is this: Our medical care system is already under significant strain from staffing shortages, financial hardships, and unexpected costs that were only exacerbated by the recent pandemic. Paired with inflationary pressures, the cost of medical care may soon be out of reach for the average American family if we don’t act quickly. Now, more than ever, the medical liability system must be improved, to the benefit of both patients and providers.

• Arne W. Owens is a former deputy assistant secretary with the U.S. Department of Health and Human Services and former chief deputy director of the Virginia Department of Health Professions.

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