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Call for testing innovative liability reforms to break
through political impasse
Washington, DC, April 10, 2014 — The American College of
Physicians (ACP) today released a policy paper on the medical
liability crisis, which continues to have a profound effect on the
medical system. "Medical
Liability Reform — Innovative Solutions for a New Health Care
System" provides an update of the medical liability landscape,
state-based activity on medical liability reform, and summarizes
traditional and newer reform proposals and their ability to affect
system efficiency and encourage patient safety.
"While medical liability premiums have leveled off in the past
few years, physicians still fear litigation, expect lawsuits, and
feel the psychological burden of navigating the complex
medico-legal system," said Molly Cooke, MD, FACP, president of ACP.
"Patients harmed by medical negligence also suffer under the
existing medical liability system."
Medical liability claims may take years to be decided, and
verdicts and award amounts may hinge on the laws and legal climate
of the state in which they are filed. ACP's previous policy paper
on medical liability reform in 2003 was published in the wake of a
medical liability crisis seemingly brought on by surging plaintiff
awards and court costs, which in turn propelled liability premiums
to historically high levels. That paper reflected ACP's support for
a number of federal medical liability reforms, including caps on
noneconomic damages, limitations on punitive damages, and a sliding
scale for attorney's fees. Many of those reforms were included in
the Help Efficient, Accessible, Low Cost, Timely Health Care
(HEALTH) Act of 2002, but the bill was never passed, indicating the
lack of Congressional action and the polarized nature of the issue.
The HEALTH Act continues to languish in Congress; the latest
version was introduced in April 2012.
While traditional medical liability reforms may currently have
little chance of passing at the federal level, states have taken
action to approve laws that not only establish caps on noneconomic
damages, but also delve into alternative dispute resolution, injury
funds, and statute of limitations on the time frame during which
injury claims can be filed.
"Perhaps more promising is the testing of innovative liability
protection models, such as health courts, enterprise liability,
safe harbor protections, and disclosure laws, which seek to break
through the political impasse and create a system that encourages
the prevention of errors, improved patient safety, and timely
resolution of legitimate claims," Cooke noted. "Both proponents and
opponents of tort reform must realize that the existing health care
system allows for too many preventable injuries and that fear of
liability undermines the patient-physician relationship"
As outlined in the paper, evidence suggests that traditional
tort reforms, particularly noneconomic damage caps, may help reduce
liability claims and health care costs. Yet even in states where
stringent tort limits have been enacted, physicians remain
concerned about medical liability, which may undermine career
satisfaction and influence their relationship with patients. It
remains unclear whether traditional tort reform improves patient
safety and outcomes. There has been a renewed focus on medical
liability reforms that move beyond traditional tort reforms, toward
creating alternatives to jury trials in favor of quick decisions
made by judicial experts, enhanced liability protection for
physicians who follow established clinical guidelines and take
responsibility for errors, and risk management efforts that focus
on ensuring patient safety.
"While preventing errors should remain the paramount goal, these
reforms may help lessen physician's liability fears while ensuring
that patients are adequately and fairly compensated for any errors
that do occur," Cooke continued. "Promising strides have been made
since ACP's last position paper on medical liability was released
A solution to the broken medical liability system in the U.S.
should include a multifaceted approach. Because no single program
or law by itself is likely to achieve the goals of improving
patient safety, ensuring fair compensation to patients when they
are harmed by a medical error or negligence, strengthening rather
than undermining the patient-physician relationship, and reducing
the economic costs associated with the current system. A
multifaceted approach should allow for innovation, pilot-testing,
and further research on the most effective reforms.
The American College of Physicians paper provides nine
approaches that should be incorporated into a multifaceted medical
liability reform initiative.