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A call for medical malpractice reform

Golden Lady Justice, Bruges, BelgiumA new report in the Journal of the American Medical Association offers a look at the current decline in medical malpractice suits and makes some predictions about their future. The authors include two Stanford faculty, Michelle Mello, JD, PhD, and David Studdert, LLB, ScD, who both have joint appointments at the School of Medicine and the School of Law.

Using national databases, the researchers found that the paid claims against doctors decreased between 2002 and 2013. Rates decreased by an average of 6.3 percent for medical doctors (MDs) and 5.3 percent for doctors of osteopathy (DOs). The amount of an average paid claim peaked in 2007 at $218,400, but had gone down a bit as of 2013. A post on the Stanford Law School’s blog explains why this may be a good time for policy-makers to consider reforms in the medical liability system:

“After years of turbulence, the medical liability environment has calmed,” said Mello. “Although many aspects of the malpractice system are dysfunctional, causing angst for physicians, the cost of malpractice claims and insurance have been stable for the last few years and the number of claims has been declining.”

She added, “Usually, attention is only focused on reform during ‘malpractice crises,’ but highly charged political environments are not conducive to cool-headed policy decisions. This current period of calm is a good time to be thinking about reforms that could improve our medical liability system.”

In their piece, the authors describe seven different novel approaches to medical malpractice reform, including one that encourages medical institutions and providers to communicate with complaining patients and find resolutions that might include payouts to patients before they file suit.

The paper also includes some predictions about the trends that will be important for medical liability policy in the coming decade. The authors assert that traditional tort reforms “will never deliver,” but the previously mentioned communication-and-resolution programs are likely to expand, as will “safe harbor” laws that protect clinicians and their institutions if they can show they are following a prescribed course of clinical treatment. Other trends include the increasing consolidation of health care within hospitals and large health systems. These large entities are likely to use their growing size to influence the liability system.

More ominously, authors note that liability insurance crises have happened in regular cycles since the system was expanded in the 1960s, and warn that another is imminent. They conclude their report by saying:

Action now to reduce the amplitude of the next medical liability cycle is both prudent and feasible. Further testing of nontraditional reforms, followed by wider implementation of those that work, holds the most promise. Prospects for permanent improvement in the medical liability climate depend on it.

Photo by Emmanuel Hybrechts

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