LMS President’s Message, June 2018
Tuyen T. Tran, M.D., MBA
In recent years, there has been tremendous tension and conflict among the medical community and its insurers, trial lawyers and victims’ rights groups regarding needed changes to our current medical malpractice system: tort reform. The intents of our medical malpractice liability system were to compensate patients who have been harmed through the negligence of healthcare providers and to deter providers from practicing negligently. The problem is that our current system fails to compensate patients who have suffered from substandard medical care and compensates those who have not. Additionally, many doctors feel compelled to practice “defensive” medicine based on fear of legal liability.
A medical malpractice claim must have all three of the following elements: 1) a violation of the “standard of care,” 2) negligence and/or omission caused the injury, and 3) the injury must have caused significant damages. Since the injury cannot be reversed, financial payment to the victim is the only method of compensation. Medical bills, future earnings and loss of use of property are economic damages which are easier to define. For the non-economic damages (subjective non-monetary loss such as pain, suffering, inconveniences, emotional distress, loss of society and companionship, loss of enjoyment of life) and punitive damages (awards for the purpose of punishment to deter intentional or reckless behavior or actions motivated by malice) are more problematic. Everyone – doctors, patients, lawyers, judges – agrees that patients who have been harmed due to substandard care deserves compensation. However, juries tend to award medical malpractice victims significantly more for their “pain and suffering” than victims who have incurred injuries from other tort claims such as car accidents.
All healthcare participants, consumers and providers, ultimately pay the cost of these awards through their insurance premiums or from out-of-pocket charges. Insurance companies, healthcare and liability insurers, will pass the costs to patients and doctors, respectively via increased premiums. More importantly, risk-averse doctors will adopt “defensive” practices which most sources estimate to be close to 2-3% of healthcare spending or about $50 Billion per year.
At the national level, there is discussion regarding the American Health Care Reform Act which proposes safe harbor from medical liability claims if healthcare providers adhere to predetermined clinical practice guidelines. The Protecting Access to Care Act proposes a nationwide $250,000 cap on noneconomic damages in medical liability lawsuits, a nationwide three-year statute of limitations and replacement of the rule of joint and several liability with a fair-share rule.
At the state level, Dr. Ralph Alvarado has tirelessly led the charge to reform Kentucky’s medical malpractice rules. (At the May LMS general meeting, he provided a great update.) All potential malpractice claims must be reviewed by a medical review panel comprised of three members (medical professionals and attorneys) who will evaluate claims for merit before reaching the court system (SB 4). In addition, Dr. Alvarado sponsored Senate Bill 20 which seeks to impose contingency caps on attorney fees in medical malpractice cases. (We all agree that the victim should get most of the award, right?)
At the local level, I strongly encourage you to participate in the medical review panel when asked. I strongly encourage you to brainstorm about other solutions to our complex medical tort system. As a starter, what if we endorsed a no-fault compensation system similar to the National Vaccine Injury Compensation Program? Then we could focus on the real issue: How can we mitigate the medical errors (now the 3rd leading cause of death in the US) that seem inherent within our healthcare system?