Health reform inspires changes in medical malpractice liability

Expanding health care insurance to all Americans was the primary function of health reform. Doing that while also containing spiraling health care costs was a close second. With that in mind, organizations of doctors and insurers are beginning to explore alternatives to traditional medical malpractice litigation that has led to both skyrocketing malpractice premiums for doctors and the practice of defensive medicine. Earlier this spring, members of the Physician Insurers Association of America (PIAA), a trade group of physician-owned liability insurance companies, devoted their annual meeting to discussing the possible alternatives to litigation under health reform.

The usual suggestions for reining in medical malpractice lawsuits - tort reform caps on damages and restrictions on filing eligibility - have traditionally created political firestorms in state legislatures across the country as the medical associations battled the trial lawyers over proposed medical malpractice legislation. Millions of dollars can be spent before such fights are over, and rarely does legislation pass that parties agree will prevent frivolous lawsuits while allowing legitimate claims to go forward.

So the authors of the health reform package decided it was time to think of creative, alternative solutions. The health reform law earmarked $50 million in incentives to encourage states to design and test alternatives to damage caps and other more traditional tort reform. Experts at the PIAA meeting went into detail on four possible alternatives to be tested under the health reform law: health courts, early offers, apology programs and medical review panels. The experts looked at how the alternatives could reduce claims and costs, and help doctors return to the kind of medicine they felt was best for their patients, not the kind that was least likely to get them sued.

"When looking at what's happening in doctors' offices and hospitals around the country, it's clear that there is still need for further reform," Ambia Harper, senior counsel for Common Good, a nonprofit legal reform coalition that helped develop the health court model, told the American Medical Association's amed news. "Defensive medicine is only one part of the cost problem in health care, but it's a significant part and it's embedded in the way that doctors practice."

Here are the highlights of some of the proposals that could be tested under health reform:

•    Medical courts - these courts would have specialized judges and neutral expert witnesses. It would have preset deadlines and specified compensation schedules. The idea is to provide consistent, fair judgments.

•    Early offer plans - defendants could offer to pay the plaintiff's economic damages and attorney's fees within 180 days of the claim. Punitive damages would not be allowed, and the plaintiff couldn't file a subsequent lawsuit for the same event.

•    Apology programs - health care providers could issue an apology without admitting guilt. Informed consent programs would be beefed up.

•    Pretrial review panels - independent panels review a case before it goes to court. The determination could be used by either side in court.

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