Medical Liability System 'Irrational,' AMA Chair Tells Congress

Ardis Dee Hoven, MD, chair of the American Medical Association, told the House Judiciary Committee this month that the medical liability system is "broken" and "irrational." After her testimony, the House, in bipartisan fashion introduced a measure that would reform the medical liability system. But Hoven concedes she has no idea when such a measure might be realized as law.

Hoven is a specialist in infectious disease medicine and internal medicine based in Lexington, KY. She has been a member of the AMA board of trustees since 2005, and in June 2010 began serving as AMA chair.  With broad experience on many physician-related issues, she says she has testified several times before Congress, but never before the Judiciary Committee.  Recently, she was appointed to the National Advisory Council for Healthcare Research and Quality and has served on numerous AMA boards, including the practicing physicians' advisory board.  

Days after her January 20 testimony calling for "meaningful" medical liability reform, Hoven told me she thought members of Congress heard her message all right, but she didn't offer predictions what they would do. It was interesting that she was invited to speak at one of the first hearings of the 112^th Congress. Of all the issue before it, Congress was ready to listen to doctors complain about medical liability: Why?

 "Several people have commented to me: you were invited to speak and this is the first time they've met in this Congress," Hoven told me. "What does that mean? I think it means that, I hope this correct, meaningful medical liability reform is back in a place it should be and we can make some progress on this."

"The cost of medical liability related issues," she says. "There are more definitive numbers now. We have a much better understanding. Doctors were talking for a long time about defensive medicine, but nobody would listen to us. The other piece is the public."

Unlike the past, she insists, "the public recognizes and thinks that the medical liability system is a costly system and dos impact patients as well. You have public concern now, which nobody had paid much attention to before. You have dollars attached to that, and I think people are looking at (medical liability) in a different light than they used to before."

For one thing, the Republicans in the House are digging deep into President Obama's healthcare reform and doing whatever it takes to get rid of it. Whatever they do, however, a potential trap door awaits: the Senate, led by Democrats.

As the political scenario unfolds, there stands the AMA, which truly wants medical liability reform, and has wanted it for years. So the organization is moving toward whatever party curries favor, and vice versa. If it's the Republicans, so be it. And besides, the polls show, physicians generally aren't exactly thrilled with many aspects of healthcare reform.

In her testimony before the House committee, Hoven called the current medical liability system increasingly irrational and in need of reform. Then she toted out figures from reports showing that the current system is patently unfair: to physicians, and patients. Over the years the AMA has been tweaking their message to change the liability system. Their latest argument: it hurts patients.

Nearly 61% of physicians aged 55 and older have been sued. A majority of claims field against physicians lack merit, as 64% of liability claims that were closed in 2009 were dismissed or lacked merit, Hoven told the committee. On average, 95 medical liability claims were filed for every 100 physicians, she said.

The threat of malpractice claims drives up healthcare cost by at least $70 billion to $126 billion each year, according to a 2003 Department of Health and Human Services study, Hoven says, because physicians are forced to practice defensive medicine. And patients don't win out, she says, because those harmed by negligence really don't get the rewards; that goes to the attorneys and courts.

For too long the public hasn't understood the meaning of medical liability reform and what it means to them, she says. In terms of medical liability, she says there is an acknowledgement by the public that "it just impacts the cost of healthcare."

"So, you've got public concern now, which nobody really paid much attention to before, and now you've got dollars and figures attached to it, and I think people are looking at it in a different light," she says.

The AMA harps on changes that were made in medical liability in Texas and particularly California. The AMA supports reforms based on California's Medical Injury Compensation Reform Act of 1975 (MICRA) that caps non-economic damages at $250,000. While premiums generally were raised an astronomical 945% nationwide between 1976 and 2009, premiums in California increased 261 % -- less than one third of that amount.

"We've got good pilot studies on this. Look what happened in California," Hoven says. Changes have proven to be "cost effective. This stuff really works. I think that is the environment we find ourselves in right now. There is good documentation now. They cannot fly in the face of facts."

It's interesting scenario, this politics business, the shifting of positions, aiming for a middle ground, finding a piece of the "puzzle," as she calls it. But that's some of the very reason the AMA had been criticized over time, in part, for what some described as limp support of healthcare reform and its failure to win concessions in areas such as the "doc fix."

"The AMA was on record from the get-go with healthcare reform that medical liability reform be part of the whole thing," Hoven says. "It has to be part of it. You can't separate this and do carve-outs and make it all work together."

Many have thought meaningful medical liability reform should have been part of the healthcare reform issue, as well, and there has been too much tepidness on the part of physician representatives, the AMA included.

With her testimony before Congress, the AMA sees its move toward medical liability reform as happening at the right time and place.

Although Republicans are interested in dismantling healthcare reform, generally, Hoven concedes that medical liability reform "can be dealt with as a stand-alone, in some ways that's better. When you try to bind this in, I'm afraid it could get buried in something or marginalized. The administration has gone on record in supporting medical liability reform."

 "Part of this is driven by the Republicans taking over the House," she adds. "We have been asking all members – Democrats and Republicans to do it," Hoven says of medical liability reform. "There is a lot of push now, as we talk about the Affordable Care Act," she says.

After her testimony, she says she was taken aback by some "theatrics" among members of Congress, but overall, she felt she got a fair shake by the committee. When I asked her about prospects for legislation, she said, "I have no idea. I could not tell from that hearing one way or another."

By January 25, however, a bipartisan bill was introduced to include what co-sponsors David Scott, D-GA, and the committee chairman, Lamar Smith, R-TX, called reforms to fix the "broken medical liability system, reduce healthcare costs and "preserve" patients' access to medical care. Another co-sponsor was Rep. Phil Gingrey, MD, (R-GA). The AMA and 100 other medical and physician organizations then sent a letter to the lawmakers, supporting the proposed Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011.

There is a "long road" ahead, for whatever prospects for change takes place, Hoven said before the bill was introduced. "You want this to be taken care of before 2012," she says, noting another political benchmark: the presidential elections.