Michelle Mello, PhD, JD, and David Studdert, ScD, both professors at Stanford's medical school and law school and core faculty members at Stanford Health Policy, say medical malpractice reform, for one, is back on the federal policy agenda.
The two wrote in a recent New England Journal of Medicine commentary that Secretary of Health and Human Services Tom Price, MD, an orthopedic surgeon and Republican congressman from Georgia before he was appointed to the Trump administration, sponsored several bills aimed at limiting medical liability.
House Speaker Paul Ryan and Price have both said medical malpractice is in crisis, with frivolous lawsuits driving up malpractice insurance premiums and forcing physicians out of business. Hospitals and doctors are so afraid of being sued they overprescribe costly tests and treatments, driving up the cost of health care.
But according to a study published last year, medical errors are the third leading cause of death in the United States. And those who follow medical malpractice insurance say the industry has stabilized in the last decade.
Mello and Studdert say that medical malpractice reform is worth pursuing. The liability system has a host of well-documented problems and its reform was omitted from the Affordable Care Act. But, they argue, Republican proposals tilt too far towards protecting physicians, with harmful consequences for patients.
“Two of the key reforms measures on the Republican agenda — ‘safe harbors’ for physicians who comply with clinical practice guidelines and the adjudication of medical injury disputes by expert panels — are promising ideas that have received a good deal of attention in the academic literature over the last 20 years,” Studdert told me.
“However, design details matter,” said Studdert. “The versions currently being considered in Congress are quite unconventional; they look more like physician-protection initiatives than reforms designed to improve safety or protect the interests of patients in other ways.”
The “safe harbors” from liability for providers who adhere to clinical practice guidelines would involve the establishment of tribunals of medical experts who would decide malpractice claims. Price has also proposed “administrative health-care tribunals” that would be presided over by special judges with health care expertise and would issue binding rulings aided by testimony from independent experts.
One worrisome aspect of the proposals is that they would replace ordinary standards of evidence with a requirement that patients prove “gross negligence.”
“That means that if your physician was merely careless or unskilled, you’re out of luck as a plaintiff,” Mello explained. “You have to show something akin to willful and wanton misconduct — like the case in Boston where the surgeon left in the middle of an operation to deposit money in his bank.”
Mello and Studdert, with their Harvard colleague Allen Kachalia, MD, note many observers find it an odd time for Congress to be considering malpractice reform, as the industry is stable and the incidence of paid claims has shrunk by half in the last decade. Indemnity-payment levels have declined or plateaued and many physicians pay less for liability insurance than they did a decade ago.
Price has claimed that defensive medicine is responsible for a quarter of U.S. health-care spending, about $650 billion, but the authors’ best estimates are closer to $50 billion.
Yet, in their commentary, the authors say this could be an ideal time to pursue reform, which ordinarily rises on the policy agenda only when a “malpractice crisis” occurs and liability insurance costs spike. “When acutely stressed providers are clamoring for immediate relief, cool-headed policy deliberation rarely ensues,” they wrote.
But, they add, reforms must be fair to patients as well as providers. They note that Price articulated a vision of health system reform that puts patients’ needs front and center.
“Medical liability reform needs the same vision,” they said.
A version of the story originally appeared on the Stanford Health Policy website.
Previously: Stanford health policy researchers examine new health care bill, Patients of high-complaint surgeons more likely to experience complications and A call for medical malpractice reform
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