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Tort Reform's Impact on Lowering Medical Malpractice Litigation Costs May Be Limited

Cheryl Clark, for HealthLeaders Media, September 7, 2010

Defensive medicine made up the bulk of that cost, or $45.6 billion per year, they estimated.

On a positive note, they anticipate that universal coverage provisions in the ACA will reduce medical liability costs because if those harmed now have health coverage, they won't need to sue to recoup medical expenses required to treat or correct conditions caused by medical malpractice. They suggest that the concept of "collateral-source offsets"—the policy in some states that precludes plaintiffs from being awarded health costs if those costs have been covered by health insurance plans.

"A farther-reaching reform that merits discussion would be to impose a federal collateral source offset in connection with the move to universal coverage," they wrote. "In these respects, health reform and liability reform may have unexpected synergies in bending our cost curve down."

Another article in the same issue suggests malpractice award caps and other tort reform laws in some states don't seem to translate to reduced concern among providers about the consequences of being sued.

"We found high levels of malpractice concern among both generalists and specialists in states where objective measures of malpractice risk were low," wrote the authors, Emily Carrier, a senior health researcher at the Center for Health System Change, and colleagues.

The authors wrote "Whether justified or not, physicians' concerns about liability risk are a policy problem because defensive practices raise healthcare costs and may subject patients to unnecessary tests and procedures."

"We also found relatively modest differences in physicians' concerns across states with and without common tort reforms.  These results suggest that many policies aimed at controlling malpractice costs may have a limited effect on physicians' malpractice concerns."

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