A real call for change: How about medicolegal reform?

Douglas W. Jackson

There is general agreement in the United States that the health care system needs reform and the medical liability situation is broken and inadequate as well. In certain areas of our country, the liability/legal environment is in “crisis” mode and physicians there find limited availability of coverage because it is prohibitively expensive. Some physicians have relocated their offices to different states because of the availability and affordability of malpractice insurance.

While there is widespread geographic variation in state laws and regulations regarding malpractice, it seems policymakers only begin to pay attention and seek provincial responses when enough local physicians are forced out of practice, take an early retirement or leave the state entirely. Many physicians who remain in these frustrating environments have had to make the hard choice of discontinuing performing high-risk procedures in order to be able to afford to keep their practices.

To some degree, as physicians we are the victims of our success. Patients’ expectations of beneficial and successful outcomes from medical treatments and surgery have risen and are even expected. Failures, complications and less-than-outstanding results have become someone’s fault. The incidence of medical errors is documented and presented frequently in the media. Even when some patients sue their physician, they are often apologetic and will say that they did not want to do it, but their partner and/or family demanded it.

No-risk litigation

Lawyers advertise on television and radio enticing people to enter into lawsuits against their doctors and/or class actions against device and drug manufacturers. They will take cases on a contingency basis, which removes any financial risk for the patient. Even in our current litigious system, the winners of awards from the litigation process often find it an undesirable experience.

A 2006 New England Journal of Medicine study revealed 54 cents of every malpractice-awarded dollar goes to attorneys and administrative costs.

This topic is usually depressing and frustrating to many physicians; however, I was amused by a Wall Street Journal op-ed article written by Richard B. Rafal, MD, a New York radiologist. He was writing in response to the comments recently made by President Obama insinuating that physicians will perform unnecessary surgeries just to make additional profits.

In the article, Rafal opined that because medical doctors and other professions are coming under new reforms with increased regulation, price controls and audits, we should consider similar applications and reforms for the law profession.

With sardonic wit, he suggested:

• that legal matters be given a relative value, a legal diagnosis-related group, with charges limited to this amount regardless of the number of hours spent on the matter and mandatory program;
• that outcome studies be performed to establish the necessity of all legal procedures and fairness of attorney fees;
• that an electronic legal records system centralize all legal records nationwide so that anyone with Internet access will be able to search the database, eliminating unjustifiable fees charged by law firms for supposedly proprietary information and foster transparency; and
• that a Lawyer Reduction Act be drafted to decrease the number of law students, and arbitrarily remove 3,200 attorneys from practice each year.

The reality

The reality: Tort reform is not a part of the health care reform bills currently being debated in Congress. Probable reasons for this were recently addressed at a town-hall meeting by the former chairman of the Democratic National Committee, Howard Dean. He said, “The reason tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on.”

Thus, it appears the trial lawyers have enough clout with legislators and potential veto power commitments to prevent significant reform. In their defense, the trial lawyers claim they “police negligent doctors,” because the medical profession does not regulate itself adequately. They claim that they protect patients from doctors’ errors and negligence and they alone obtain compensation for injured patients.

According to the Center for Responsive Politics, 91% of the $30.7 million in political contributions made by the American Association for Justice (AAJ) — formerly the Association of Trial Lawyers of America — the trial lawyers’ Washington lobbying group, in the past 20 years has gone to Democrats.

I am not alone in believing that a few thousand trial lawyers have tied up the Democrats in Congress and prevented meaningful legal reform.

Simple actions can save dollars

In a recent letter to Sen. Orrin Hatch (R-Utah), Douglas W. Elmendorf, the director of the Congressional Budget Office (CBO), offered suggestions for tort reform, including:

• a cap of $250,000 on awards for noneconomic damages;
• a cap on awards for punitive damages of $500,000 or two times the award for economic damages, whichever is greater;
• modification of the “collateral source” rule to allow evidence of income from such sources as health and life insurance, workers’ compensation, and automobile insurance to be introduced at trials or to require that such income be subtracted from awards decided by juries;
• a statute of limitations — 1 year for adults and 3 years for children — from the date of discovery of an injury; and
• replacement of joint-and-several liability with a fair-share rule, under which a defendant in a lawsuit would be liable only for the percentage of the final award that was equal to his or her share of responsibility for the injury.

In the letter, Elmendorf noted that the CBO’s earlier estimates on the effects of these reforms on annual health care costs in the United States. He wrote, “If a package of proposals such as those described above was enacted, it would reduce total national health care spending by about 0.5% (about $11 billion in 2009).

He also noted that in terms of the federal budget, enactment of these proposals would reduce mandatory spending for Medicare, Medicaid, the Children’s Health Insurance Program, and the Federal Employees Health Benefits program by roughly $41 billion over the next 10 years.

I would like to add the following to Elmendorf’s list:

• a professional review court or panel to comment on the merits of medical liability cases before trial;
• if a frivolous trial is taken to court and loses all court costs of the defendant should be covered; and
• that actual trials be heard by an agreed panel of experts.

Despite these suggestions, medical liability relief is prevented from being incorporated into health care reform because of the influence of special interest groups and the stranglehold the trial lawyers have on the Democratic Party.

We can present alternatives and propose pilot studies that are not funded or underfunded by Congress and will go nowhere. The only way this will change is when the severity of the crisis increases or the public and physicians form an effective coalition to overcome this strong special interest group.

Douglas W. Jackson, MD
Chief Medical Editor