The new wave of medical malpractice crisis.
In the past these
produced reforms. This topic is complex, and intensely fought
over. There are the reforms we need, and the reforms that
might be practical. Discussing these would be difficult in
this space, but we are trying to provide a guide.
Also see our Overview,
Tort Refrom Batltes On
the U.S. Senate will vote on medical liability reform legislation, during Health Week, on Tuesday, May 2. A bill has not yet been introduced but it will likely include some form of reasonable limits on non-economic damages. As has happened in past years, the House of Representatives passed reform legislation.
The U.S. Senate Votes on Medical Liability Reform in early May and again in July! Reform has passed in the House, now it's up to the Senate. Senators need to hear from you now
The President issued the following statement: I am pleased that the House of Representatives has again passed medical liability reform legislation. The Nation's medical liability system is badly broken, as frivolous lawsuits are threatening access to quality health care and raising health care costs for all Americans. The medical liability crisis is driving up health care costs through higher insurance premiums, higher medical bills, and the practice of defensive medicine. This crisis also is imposing substantial costs on the Federal government and all taxpayers who bear the cost of Medicare and Medicaid. The liability crisis is driving good doctors out of medicine and leaving patients in many communities without access to both basic and specialty medical services. This is a national problem that deserves a national solution. For the sake of all Americans, it is time for the Senate to pass meaningful medical liability reform legislation.
, but the issue continues to be stalled by a handful of Senators who refuse to allow an up-or-down vote on this important issue.
Key organizations fighting for reform include
DLMR, an alliance of neurosurgical specialty societies, and Common Good, an effort to refomr the legal system as a whole, with a focus on Medical Malpractice.
While national reform is fought for, in your own practice, the
most careful reforms of your style and protections may serve you
the best as the national struggle continues.
The principal effort is Federal, and the following is a summary
of Senator
Frists bill.
6/26/2003--Introduced, Patients First Act of 2003 - Makes changes
to the health care liability system, including compensation for
injured patients and other issues arising out of health care law
suits. A) Requires a suit to be brought within three years of the
date of injury or one year after the claimant discovers or should
have discovered the injury, whichever occurs first. Specifies exceptions
when a suit may be brought later than three years after the date
of injury.B)Sets forth requirements and permissible recovery amounts
for compensating patient injury, including: (1) the full amount
of economic loss without limitation; (2) noneconomic damages as
specified; and (3) a fair share rule. C) Requires the court to supervise
payment-of-damage arrangements, limiting contingency fees D)Sets
forth rules for expert witnesses in cases concerning issues of negligence.
States that such rules do not pertain to witnesses testifying to
the degree or permanency of medical or physical impairment. E)Permits
the introduction of evidence of collateral source benefits, except
that this section shall not apply to provisions of the Social Security
Act pertaining to State plans for medical assistance and Medicare
as secondary payer F) Limits the availability of punitive damages,
requiring clear and convincing evidence of malicious intent to injure
or a deliberate failure to avoid substantially certain, unnecessary
injury. Prohibits their award for products that comply with Food
and Drug Administration (FDA) standards, except if the manufacturer
or distributor of a particular medical product or the supplier of
a component or raw material of such a product causes harm by failing
to comply with a specific requirement of the Federal Food, Drug
and Cosmetic Act.G) Authorizes periodic payment of future damages
to claimants. H) Excludes suits for vaccine-related death or injury
from the requirements of this Act if otherwise covered under the
National Vaccine Injury Compensation Program. I) Preempts State
law unless such law imposes greater protections for health care
providers and organizations from liability, loss, or damages J)
Expresses the sense of Congress that a health insurer should be
liable for damages for harm caused when it makes a decision as to
what care is medically necessary and appropriate.
The federal legislation was not successfully passed:
7/9/03 - Senate Democrats were successful in preventing S. 11, the
Senate version of H.R. 5 that would limit non-economic damages in
medical malpractice to $250,000, from proceeding. The vote was 49-48,
11 short of the 60 votes needed to overcome the Democratic-led filibuster.
As the whole package is not succeeding at this time, an effort is
underway to offset some of the malpractice expense to make it more
manageable.
S.1055 (Durbin-IL) Legislation to amend the IRS code to provide
physicians and other health care professionals with a tax credit
for qualified expenditures for medical professional malpractice
insurance, and for other purposes.
Apparently one of the key current strategies is to break
the problem into pieces, starting with specialties that are
mostly likely not to be voted down, such as Ob-Gyn.
September 11, 2003, American Academy of Opthamology
Senate Strategizes to Move on Medical Liability Reform
After a 48-for and 49-against vote in the Senate in July,
the Senate leadership is now working on a strategy for the
fall on medical liability reform. It now appears that the
base bill could be considered in four different forms for
separate floor votes, starting with a vote the week of September
22, on an obstetrics bill. The provisions in each case would
be the same as the House-passed liability bill, but the scope
of services covered would be different. The four bills would
apply to: (1) obstetric services; (2) trauma care; (3) rural
providers and (4) good-Samaritan providers, who find themselves
at the scene of a medical emergency and tend to injured individuals
(i.e., a car accident, at a baseball game, etc.). The strategy
is to put the anti-liability reform Senators in an uncomfortable
position and possibly drive a wedge between them and the trial-lawyers.
These limited-scope bills cover the procedures/providers who
have seen the greatest increases in their liability insurance
rates. This is currently hotly
debated at the AMA.
A no-fault approach has been advocated, which appears to
be in the stage of dicussion and intriguing supportive studies,
but a strong argument is made that for roughly equivalent
cost to the current system, it could distribute more money
to help more patients. with more accuracy in assessing whether
there was injury and what was needed (see
David Studdert studies). Dr. Studdert also tracks past
malpractice crises, and argues that they resolved when they
produced a reaction of tort reform.
Another effort at reform comes from the Leapfrog
Group. This is a consortium of large companies working
to improve quality of care and reduce risk and cost. They
are to use collective purchasing power to motivate
hospitals to implement particular measures.The consequences
of this are debated.
In response to the call to press forward with malpractice
reforms, legislators in 34 states-Alabama, Arkansas, Arizona,
Colorado, Connecticut, Florida, Hawaii, Idaho, Illinois, Indiana,
Kentucky, Maine, Massachusetts, Minnesota, Mississippi, Missouri,
Montana, Nevada, New Hampshire, New Jersey, North Dakota,
Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South
Carolina, Tennessee, Texas, Utah, Virginia, Washington, West
Virginia and Wyoming-considered a variety measures to change
existing systems during the 2003 session.Of these 34 states,
11 have enacted laws of varying degrees concerning liability
for damages
Florida
is struggling to find an effective limit on damages. A
comment
on this indicates that in Florida, after three special
sessions a cap of $500,000 was passed, not the $250,000 hoped
for. Many loopholes were present. The Florida Medical Association
in its annual meeting this past Labor Day week-end passed
a resolution calling for a constitutional amendment to cut
down on contingency fees for trial lawyers. Although the remaining
five insurance companies cannot, by virtue of the new law,
increase their premiums, GE MedPro already decided to withdraw
from the market, leaving about 400 physicians without coverage
on their renewal dates.
Texas has passed a cap
on noneconomic damages. Proposition 12 would allow lawmakers
to limit damages awarded for a plaintiff's noneconomic damages
such as mental anguish in medical malpractice lawsuits. It
does not cap actual or punitive damages. The amendment clarified
the Legislatures's authority to set those limits and protected
a sweeping trial-award overhaul law that went into effect
Sept. 1 from subsequent legal challenges. Described as the
most sweeping change in tort law in more than 100 years, the
law limits liability for doctors, hospitals and nursing homes
at $250,000 each and caps total noneconomic damages at $750,000.
Links to keep up on reform:
AMA
Medical Liability Reform News
ACS American College
of Surgeons, Advocacy Page
The
Illinois Trail Lawyers Association has up to date news
ATRA, American Tort Reform Association
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