Perspective
Health Care 2009
The Role of Medical Liability Reform in Federal Health Care Reform
N Engl J Med 2009; 361:1-3July 2, 2009
- Article
Although enthusiasm for health care reform is resounding in Washington these days, the specific shape reform will take and the compromises that will have to be made along the way are opaque. Currently, much of the discussion centers on possibilities for insurance mandates, a public insurance plan modeled after Medicare, and the methods that will be used to control costs.1 Many other issues will have to be addressed, including physician payment reform, the future of Medicare Advantage, providers' participation in public programs, the role of expansions of Medicaid, and of course, the funding mechanism for any increase in government expenditures. A further question is whether the reform package should include reforms to the medical liability system, which is often blamed for contributing to rising health care costs.
Medical liability reform has garnered relatively little attention in the past two congressional sessions — in striking contrast to its prominence in previous federal health policy debates. The ebbing of the recent malpractice insurance “crisis” may have undercut momentum for liability reform, but a more important explanation relates to the politics of the issue. Tort reform has long been a Republican issue; Democrats have been suspicious of reform proposals and, perhaps, mindful of the heavy support they have received from the trial bar. With the turnover of the House (in 2007) and the Senate (in 2009) to Democratic control, liability reform has been submerged. The question now is whether health care reform changes the political calculations around the issue.
There are at least three reasons why government champions of health care reform might consider bundling medical liability reform in the same package. First, one piece of conventional wisdom that is shared by those on both sides of the political aisle is that “defensive medicine” spurred by concern about malpractice liability is a substantial driver of the escalation of health care costs. These costs are notoriously difficult to estimate, and analysts disagree about the magnitude of their contribution to overall health expenditures.2 But trimming even 1% of total health care spending would save around $22 billion per year — not a trivial amount, particularly in lean times.
Second, health care reformers understand that they will have to garner physician support for an omnibus bill that will no doubt create a more stringent financial environment for health care providers. Expansions of public insurance programs, including models generating stiffer market competition between public and private health plans, will entail changes in the payer mix that are unfavorable for providers and exert continued downward pressure on reimbursement rates. What can reformers offer physicians as a quid pro quo? The answer is malpractice reform. Most physicians find the litigation system unfair, financially and psychologically burdensome, and unhelpful in promoting safety and quality. They would welcome relief of some sort.
Third, bundling tort and health care reform may help to attract support from congressional Republicans for a health care reform package. Many key Republicans agree with physicians about the problems with the tort system and have worked hard in the past to develop proposals for medical liability reform. A bundling strategy would offer them the chance to advance their agenda in exchange for helping the President achieve his vision of bipartisan health care reform legislation.
What kinds of malpractice reforms might be candidates for bundling? The warhorse of federal tort reform efforts in the past has been caps on noneconomic damage awards. However, in the current political environment, the chances are nearly nil that tort reform of this sort could pass — it is anathema to most House Democrats. The realistic contenders are more moderate measures that address physicians' complaints about the unfairness of court decisions that appear to be out of step with medical expertise (see table
Advantages and Disadvantages of Potential Medical Liability Reforms.).Two potential approaches are outlined in the widely read 2008 white paper on health care reform by Senator Max Baucus (D-MT), the Patients' Choice Act introduced in May by a group of Senate and House Republicans led by Senator Tom Coburn (R-OK), and the Fair and Reliable Medical Justice Act, which Baucus and Senator Michael Enzi (R-WY) cosponsored in each of the past two congressional sessions.2,3 The first approach calls for state experimentation with innovative programs adopted by liability insurers, sometimes called disclosure-and-offer programs, in which health care providers disclose unanticipated outcomes of care to patients and make prompt offers of compensation in appropriate cases. Patients do not waive their right to sue by accepting the offer, but reportedly, few go on to file lawsuits. While he was a senator, President Barack Obama cosponsored legislation to promote this approach.4 These programs appear promising, though they have never been formally evaluated.
The second approach is to shift the adjudication of medical malpractice claims to a new kind of tribunal — either an administrative panel that would award damages on the basis of judgments by neutral experts about the avoidability of the injury or specialized judicial courts presided over by judges with medical expertise. This approach is attractive on its merits; it would address several fundamental problems with the current system, in which juries make decisions with scant guidance on complex scientific issues and what constitutes reasonable damages awards.
A third approach would be to create a federal “safe harbor,” retaining the current process of adjudication but insulating physicians from liability if they adhered to evidence-based medical practices. For example, legislation introduced by Senator Ron Wyden (D-OR) in February would create a rebuttable presumption that care was not negligent if the physician followed accepted clinical practice guidelines.5 Similarly, physicians could be given immunity or a favorable presumption if they practiced in accordance with findings of credible comparative-effectiveness research (CER).
Part of the appeal of the second and third approaches is their resonance with Washington's current interest in CER. The American Recovery and Reinvestment Act of 2009 allocated $1.1 billion for CER; however, it granted the Federal Coordinating Council for Comparative Effectiveness Research no authority to implement changes to insurance coverage or reimbursement on the basis of CER findings. Because safe harbors and special tribunals led by medical experts would give physicians a legal incentive to practice evidence-based medicine, liability reform could be an effective way to foster the uptake of CER findings. As politically difficult as tort reform can be, it is probably more tractable than limiting coverage or reimbursement to the most cost-effective treatments — or even to the most clinically effective therapies. In addition, physicians and hospitals will complain, with reason, if they practice in accordance with CER findings yet are found liable for malpractice.
The three reform approaches are not mutually exclusive and indeed could complement one another. All face a common legal hurdle: federalism. The fact that medical malpractice law has traditionally been controlled by the states complicates attempts to impose a federal structure on it. However, there are at least two ways Congress could surmount the federalism obstacle: declare its intent to completely preempt state regulation of the field — a drastic step — or simply condition states' receipt of federal health funds or “bonus payments” on their willingness to adopt changes to their tort systems.
At present, few policymakers are openly discussing the pros and cons of bundling liability reform and health care reform. The overture to the exquisite oratorio of lawmaking calls for each player to press the key positions its constituents demand. But within a few months, we predict that many will be looking for compromises. Quite a few already recognize the potential political advantages of bundling, and the President himself is on record as stating that liability reform must be part of health care reform. If liability reform proves to be an enticing sweetener for a health care reform compromise, it could become part of the package.
Dr. Mello reports receiving consulting fees from the American Medical Risk Insurance Company; and Dr. Brennan, holding equity in CVS Caremark and Aetna. No other potential conflict of interest relevant to this article was reported.
This article (10.1056/NEJMp0903765) was published on June 15, 2009, at NEJM.org.
Source Information
From the Department of Health Policy and Management, Harvard School of Public Health, Boston (M.M.M.); and CVS Caremark, Woonsocket, RI (T.A.B.).
- References
References
1
Iglehart JK . The struggle for reform -- challenges and hopes for comprehensive health care legislation. N Engl J Med 2009;360:1693-1695
Full Text | Web of Science | Medline2
Baucus M. Call to action: health reform 2009. Washington, DC: United States Senate Committee on Finance. (Accessed June 11, 2009, at http://www.finance.senate.gov.)
3
Patients' Choice Act, S.1099, 111th Cong. (2009).
4
National Medical Error Disclosure and Compensation (MEDiC) Act. S.1784, 109th Cong. (2005).
5
Healthy Americans Act, S.391, 111th Cong. (2009).
- Citing Articles (38)
Citing Articles
1
Adam C. Schaffer, Allen Kachalia. (2012) The Medical Liability System: Essential Information for the Hospitalist. Hospital Medicine Clinics 1:2, e276-e287
CrossRef2
Davide Capodanno, Dominick J. Angiolillo. (2012) Antithrombotic Pharmacotherapy in the Elderly: General Issues and Clinical Conundrums. Current Treatment Options in Cardiovascular Medicine 14:1, 57-68
CrossRef3
2011. Will We Ever See Tort Reform in the United States?. , 165-178.
CrossRef4
S. Yu, R. T. Burge, S. A. Foster, S. Gelwicks, E. S. Meadows. (2011) The impact of teriparatide adherence and persistence on fracture outcomes. Osteoporosis International
CrossRef5
C. Sessa. (2011) Update on PARP1 inhibitors in ovarian cancer. Annals of Oncology 22:Suppl 8, viii72-viii76
CrossRef6
M. Goldfracht, D. Levin, O. Peled, I. Poraz, E. Stern, J.-L. Brami, E. Matz, A. Fruman, D. Weiss, N. Lieberman, J. Dreiher. (2011) Twelve-year follow-up of a population-based primary care diabetes program in Israel. International Journal for Quality in Health Care 23:6, 674-681
CrossRef7
Donald S. Silverberg. (2011) The role of erythropoiesis stimulating agents and intravenous (IV) iron in the cardio renal anemia syndrome. Heart Failure Reviews 16:6, 609-614
CrossRef8
Rajeev Mathew, Eleni Asimacopoulos, Peter Valentine. (2011) Toward safer practice in otology: A report on 15 years of clinical negligence claims. The Laryngoscope 121:10, 2214-2219
CrossRef9
Julie Bauman, Claire Verschraegen, Steven Belinsky, Carolyn Muller, Teresa Rutledge, M. Fekrazad, Meera Ravindranathan, Sang-Joon Lee, Dennie Jones. (2011) A phase I study of 5-azacytidine and erlotinib in advanced solid tumor malignancies. Cancer Chemotherapy and Pharmacology
CrossRef10
Marco Platania, Francesco Agustoni, Barbara Formisano, Milena Vitali, Monika Ducceschi, Filippo Pietrantonio, Nicoletta Zilembo, Francesco Gelsomino, Sara Pusceddu, Roberto Buzzoni. (2011) Clinical retrospective analysis of erlotinib in the treatment of elderly patients with advanced non-small cell lung cancer. Targeted Oncology 6:3, 181-186
CrossRef11
Yi Zhang, Mae Thamer, James S Kaufman, Dennis J Cotter, Miguel A Hernán. (2011) High doses of epoetin do not lower mortality and cardiovascular risk among elderly hemodialysis patients with diabetes. Kidney International 80:6, 663-669
CrossRef12
Jena, Anupam B., Seabury, Seth, Lakdawalla, Darius, Chandra, Amitabh, . (2011) Malpractice Risk According to Physician Specialty. New England Journal of Medicine 365:7, 629-636
Full Text13
Loreto Gesualdo, Gérard London, Matthew Turner, Christopher Lee, Karen MacDonald, David Goldsmith, Adrian Covic, Philippe Zaoui, Christian Combe, Johannes Mann, Frank Dellanna, Michael Muenzberg, Ivo Abraham. (2011) A pharmacoepidemiological study of the multi-level determinants, predictors, and clinical outcomes of biosimilar epoetin alfa for renal anaemia in haemodialysis patients: background and methodology of the MONITOR-CKD5 study. Internal and Emergency Medicine
CrossRef14
V. Wizemann. (2011) Epoetin bubble: a severe German case Honi soit qui mal y pense. Nephrology Dialysis Transplantation 26:5, 1750-1752
CrossRef15
Kachalia, Allen, Mello, Michelle M., . (2011) New Directions in Medical Liability Reform. New England Journal of Medicine 364:16, 1564-1572
Full Text16
PETER R. KOWEY. (2011) How Much Has Malpractice Litigation Altered the Care of Cardiac Rhythm Patients?. Journal of Cardiovascular Electrophysiology 22:4, 488-489
CrossRef17
Priya Nair, Andrew R. Davies, John Beca, Rinaldo Bellomo, David Ellwood, Paul Forrest, Andrew Jackson, Roger Pye, Ian Seppelt, Elizabeth Sullivan, Steve Webb. (2011) Extracorporeal membrane oxygenation for severe ARDS in pregnant and postpartum women during the 2009 H1N1 pandemic. Intensive Care Medicine 37:4, 648-654
CrossRef18
Christopher M. Burkle. (2011) Medical Malpractice: Can We Rescue a Decaying System?. Mayo Clinic Proceedings 86:4, 326-332
CrossRef19
P. R. W. Kendall. (2011) The 2009 Provincial Decision to De-emphasize Seasonal Influenza Vaccine in Canada: Real-Time Risk-Benefit Analysis. Clinical Infectious Diseases 52:6, 829-830
CrossRef20
Lior Goldberg, David Greenberg, Itay Zelcer, Leonel Slanovic, Yonat Shemer-Avni, Ronit Nativ, Avraham Borer, Gabriel Hodik, Michael Sherf, Matitiahu Lifshitz, Eugene Leibovitz. (2011) EPIDEMIOLOGIC, CLINICAL, LABORATORY, AND THERAPEUTIC CHARACTERISTICS OF INFLUENZA A/H1N1 IN MOSLEM BEDOUIN AND JEWISH CHILDREN HOSPITALIZED IN SOUTHERN ISRAEL DURING 2009. The Pediatric Infectious Disease Journal1
CrossRef21
E. J. Kasowski, R. J. Garten, C. B. Bridges. (2011) Influenza Pandemic Epidemiologic and Virologic Diversity: Reminding Ourselves of the Possibilities. Clinical Infectious Diseases 52:Supplement 1, S44-S49
CrossRef22
D. Goldsmith. (2011) Extraordinary popular delusions and the madness of crowds: puncturing the epoetin bubble--lessons for the future. Nephrology Dialysis Transplantation 26:1, 24-28
CrossRef23
Randy Pilgrim, Joshua A. Hilton, Emily Carrier, Jesse M. Pines, Greg Hufstetler, Suzette Thorby, T. J. Milling, Beth Cesta, Renee Y. Hsia. (2010) Research Priorities for Administrative Challenges of Integrated Networks of Care. Academic Emergency Medicine 17:12, 1330-1336
CrossRef24
Peter R. Kowey. (2010) Why Did You Order That Echocardiogram?. Clinical Cardiology 33:10, 596-597
CrossRef25
Emrah Altındiş. (2010) Vaccines for all: Institut Pasteur Vaccinology Course, 2010. Expert Review of Vaccines 9:9, 1023-1026
CrossRef26
R. J. Glassock. (2010) Health care reforms in America: perspectives, comparisons and realities. QJM 103:9, 709-714
CrossRef27
N. Uren. (2010) Acute coronary syndromes: assessing risk and choosing optimal pharmacological regimens for a superior outcome. European Heart Journal Supplements 12:Suppl D, D4-D13
CrossRef28
James T. Dove, John E. Brush, Richard A. Chazal, William J. Oetgen. (2010) Medical Professional Liability and Health Care System Reform. Journal of the American College of Cardiology 55:25, 2801-2803
CrossRef29
D. Goldsmith, A. Covic. (2010) Time to Reconsider Evidence for Anaemia Treatment (TREAT) = Essential Safety Arguments (ESA). Nephrology Dialysis Transplantation 25:6, 1734-1737
CrossRef30
David M. Studdert, Michelle M. Mello, Troyen A. Brennan. (2010) Defensive Medicine and Tort Reform: A Wide View. Journal of General Internal Medicine 25:5, 380-381
CrossRef31
Guillermo Domínguez-Cherit, Silvio A. Ñamendys-Silva, Alethse Torre, Alejandro E. Macias, Jose Angel Cordova-Villalobos. (2010) H1N1 Influenza Pandemic of 2009 Compared With Other Influenza Pandemics: Epidemiology, Diagnosis, Management, Pulmonary Complications, and Outcomes. Current Infectious Disease Reports 12:3, 204-210
CrossRef32
Lena M. Napolitano, Pauline K. Park, Krishnan Raghavendran, Robert H. Bartlett. (2010) Nonventilatory strategies for patients with life-threatening 2009 H1N1 influenza and severe respiratory failure. Critical Care Medicine 38, e74-e90
CrossRef33
Niranjan Kissoon. (2010) H1N1 pandemic—Once more onto the breach, dear friends, once more*. Pediatric Critical Care Medicine 11:2, 295-297
CrossRef34
A. Auricchio. (2010) Is it time to start with device-based prognosticators?. Europace 12:1, 7-8
CrossRef35
Tim Churches, Stephen J. Conaty, Robin E. Gilmour, David J. Muscatello. (2010) Reflections on public health surveillance of pandemic (H1N1) 2009 influenza in NSW. New South Wales Public Health Bulletin 21:2, 19
CrossRef36
Sulene L Chi, M Tariq Bhatti. (2009) The diagnostic dilemma of neuro-imaging in acute isolated sixth nerve palsy. Current Opinion in Ophthalmology 20:6, 423-429
CrossRef37
Iglehart, John K.. (2009) Obama's Vision and the Prospects for Health Care Reform. New England Journal of Medicine 361:14,
Full Text38
Jon C. George, Theodore A. Bass. (2009) Health Care Reform Bill H. R. 3200—America's Affordable Health Choices Act. JACC: Cardiovascular Interventions 2:10, 1028-1030
CrossRef
