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The Coming Fight over Malpractice Reform

Elyas Bakhtiari, for HealthLeaders Media, March 19, 2009

There's a chance that the Obama administration's efforts to revamp the healthcare system will finally bring physicians the malpractice tort reform they have been hoping and fighting for all these years. There's also a chance, if this week's news is any indication, that the battle over malpractice litigation could turn sour and derail the entire healthcare reform process.

How it will play out depends on how much physicians, lawyers, and the administration are willing to compromise.

Trial lawyers are preparing for a fight, starting with a 29-page research document they will send to Capitol Hill in an attempt to convince lawmakers that lawsuits have very little to do with healthcare costs. James Rohack, MD, president-elect of the AMA, has responded by publicly suggesting that a bill that doesn't include medical liability reform will be unsuccessful at controlling costs.

That's a sentiment I've heard from physicians before.

Two weeks ago, I was sitting in the audience at Donald Berwick's keynote address at the American Medical Group Association's annual conference in Las Vegas. The IHI co-founder had just finished a 30,000-foot overview of the problems of the U.S. healthcare system, particularly in comparison to other developed countries that get better results for less money. To both improve quality and reduce costs, everyone involved in the system—from hospitals to physicians to patients—will have to make sacrifices, he explained.

"What about malpractice reform?" the first questioner asked when Berwick opened up the discussion to attendees. He was a physician, and murmurs of approval rippled through the crowd.

Berwick's answer didn't please the questioner and many of his colleagues. The data just doesn't back up the claim that malpractice lawsuits are one of the top drivers of healthcare costs, he replied. Even when the costs of defensive medicine are considered—it's hard to get an accurate estimate, but it may cost $1.4 billion in Massachusetts alone—there are much bigger fish to fry when it comes to improving the healthcare system.

Most physicians don't want to hear that.

I'm not suggesting the trial lawyers are in the right, here. But physicians bear most of the burden of this problem, and because of that, it is a much higher priority for doctors than it is for the people looking at the healthcare system from that 30,000-foot perspective.

Even in our recent HealthLeaders Industry Survey, there was a disconnect between physicians and other healthcare leaders. More than one-third of physician leaders told us that malpractice litigation was the top driver of healthcare costs, but only 13% of respondents to our finance survey, for example, agreed with them.

It's not that tort reform isn't important—it is. And it's not that physicians shouldn't fight for reform—they should. But let's be honest about the severity of the problem and the reasons for pursuing reform. While malpractice reform is an important issue, is it really worth sacrificing the rest of the healthcare reform process if it doesn't go through?

A lot has changed since the last failed attempt at federal tort reform under the Bush administration. Progress has been made in several states that have capped malpractice awards or instituted some other type of reform. Doctors have learned that saying sorry sometimes works, and innovative thinkers have developed alternative ideas to simply capping awards, such as "health courts" to decide trials more fairly or no-fault compensation for deserving patients. Most importantly, more attention is being paid to preventing unnecessary medical errors, so fewer patients have a reason to consider a lawsuit in the first place.

The Obama administration seems willing to address medical liability reform, although the details are still unclear. Sen. Max Baucus (D-MT) has also expressed interest in tackling the issue, and he supports giving money to states for alternative litigation models.

Physicians have convinced the president that medical liability matters, and as long as they don't prioritize it over all other healthcare reform matters, they can win this fight.

Elyas Bakhtiari is a managing editor with HealthLeaders Media. He can be reached at ebakhtiari@healthleadersmedia.com.
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3 comments on "The Coming Fight over Malpractice Reform"


Aukje Spoelstra (8/17/2009 at 2:42 AM)
I totally agree with William Rosenfeld's comments. I have been a nurse for 25 years, here and in Europe. I work ER and ICU and see the total waste of money spent on defensive medicine. In the ER everybody with abdominal pain will undergo a CT of the abdomen, wvwqn if theyt come back every week with the same symptoms. The doctor has not even seen the patient. Neither do they do the thorough physical exams anymore with which a knowledgeable MD could diagnose for instance an appendiicitis: Auscultation, percussion, palpation. Why would he waste his time doing that when the patient will have an all-conclusive CT scan? And that is just one example of an unnecessary test for one symptom. In the ICU we keep patients alive without any hope for recovery, very expensive very unnecessary and very painful for the patient. But it is done because the family wants it. Ask not only any MD but also the tens of thousands of (bedside) RN's and they will tell you that billions are wasted on the fear of litigation. And I am not even mentioning all the time pent away from the patient because of charting and mounds of paperwork that show that we did what we chart we did. Without tort reform no health care system of reform will sustain.

ACarroll (8/14/2009 at 7:21 PM)
This summary of the issues involved in malpractice reform is very balanced and reasonable. This is an insurance problem, not a healthcare cost problem. It's long been documented that costs for malpractice insurance premiums follow economic cycles, just as health insurance premiums do. When insurance companies experience declines in their returns on investment, they raise their prices. The insurance industry has to send signals to Wall Street that they will continue to protect and maximize their profits, or else their stock prices will go down. Currently medical liability costs contribute only 2% to costs in the overall healthcare system. Research by David Studdert and colleagues at the Harvard Medical Practice Study showed that very few cases are brought to trial, even in cases of severe injuries due to medical errors. They also showed that cases with merit are more likely not to be litigated and paid out than cases without merit were likely to be paid, that plaintiffs lose in 4/5 of jury trials, and only 3%-5% of injured patients ever sue or are compensated. Atul Gawande showed that even in states with caps, like Texas, the number of cases has been reduced to very few to zero, yet doctors still complain about medical malpractice concerns and the "plaintiffs' bar." (New Yorker, June 1,2009). The people who are hurt by caps on pain and suffering are the patients who were initially hurt by their providers, especially those with lower incomes who don't benefit from the "income replacement" part of claims, and babies who are left with lifelong disabilities. The true cost of "defensive medicine" to the healthcare system is not known, so people should be skeptical whenever they find a dollar figure attached to it. One researcher has called the practice of defensive medicine "a neurosis," given these facts. The Sorry Works! movement has shown that when hospitals change their behavior and adopt certain practices when claims are made (and even as soon as they know that there was an error), the number of claims against them and the cost of risk management go way down; this is proof that there is NO "medical malpractice crisis", but rather a "provider behavior crisis." In addition, if doctors, nurses, and hospitals practiced evidence-based medicine, there would be no need for "defensive medicine". The Dartmouth Atlas researchers show that less than 60% of medicine in the US is based on any scientific knowledge at all or any knowledge about what works and what doesn't work. (www.dartmouthatlas.org).

williamrosenfeldmd (3/20/2009 at 11:02 AM)
Medical liability costs are magnitudes greater than any estimate I have ever seen. The fear of the economic and emotional costs of such litigation is a weight on all of our shoulders driving expenses far higher than can be imagined except by those who have been clinicians at the epicenter for years. Physicians and hospitals are caught in the same liability crisis that grips government and business. It might seem shameful to admit this, but I believe that 75% of medical expenses are liability driven. There is very little room any longer for relying on practical algorithms and experience: every test must be done, and, at times, even repeated. The costs spent avoiding missing the one-in-a-thousand diagnosis prevents us from being able to provide excellent, tho not quite perfect, care for the masses. With all due respect to well meaning and very bright nonphysicians and those physician experts who haven't practiced for years, they just don't understand our work environment and the pressures we face.