Medical malpractice

Medical MalpracticeMedical Malpractice

Brian WellsBrian Wells

University of FloridaUniversity of Florida

December 9, 2003December 9, 2003

The Medical Malpractice CrisisThe Medical Malpractice Crisis

““Our badly broken medical liability system Our badly broken medical liability system is responsible for higher costs for patients, is responsible for higher costs for patients, lower quality of care, and for decreased lower quality of care, and for decreased access.” – President G. W. Bushaccess.” – President G. W. Bush

Why do we need medical Why do we need medical malpractice laws?malpractice laws?

Medical ErrorsMedical Errors– Kill between 44,000 and 98,000 per yearKill between 44,000 and 98,000 per year– Medication errors harm about 7,000 per yearMedication errors harm about 7,000 per year

1 per 131 outpatient deaths, 1 per 854 inpatient1 per 131 outpatient deaths, 1 per 854 inpatient

Need for a way to deter medical errors and Need for a way to deter medical errors and to compensate those harmed by to compensate those harmed by substandard caresubstandard care

Source: Institute of Medicine – http://www.iom.edu

Medical Malpractice StatisticsMedical Malpractice Statistics

An average of 10,000 medical malpractice An average of 10,000 medical malpractice lawsuits are filed each year.lawsuits are filed each year.

The median malpractice settlement in The median malpractice settlement in 1999 was $600,000 (63% increase from 1999 was $600,000 (63% increase from 1993).1993).

The median award in cases involving The median award in cases involving obstetricians and gynecologists in 2000 obstetricians and gynecologists in 2000 was $1M (43% increase from 1999)was $1M (43% increase from 1999)

Medical Malpractice StatisticsMedical Malpractice Statistics

In the 1994 – 1996 period, 34% of all In the 1994 – 1996 period, 34% of all awards were > $1Mawards were > $1M

In the 1999 – 2000 period, 52% of all In the 1999 – 2000 period, 52% of all awards were > $1Mawards were > $1M

In Mississippi there have been 21 verdicts In Mississippi there have been 21 verdicts of $9M or more since 1995 (one of which of $9M or more since 1995 (one of which was $100M)was $100M)

Before 1995 there were no verdicts > $9M.Before 1995 there were no verdicts > $9M.

The Actions of PhysiciansThe Actions of Physicians

MD’s are giving up practices or limiting MD’s are giving up practices or limiting practices to patients without health practices to patients without health conditions that increase litigation riskconditions that increase litigation risk

MD’s are moving to states with better legal MD’s are moving to states with better legal systems and lower insurance ratessystems and lower insurance rates

MD’s are changing their behavior to avoid MD’s are changing their behavior to avoid suitssuits

Source: Confronting the New Health Care Crisis – www.aspe.hhs.gov 7/25/02: HHS – Office of Disability, Aging, and LTC Policy

Defensive MedicineDefensive Medicine

Physicians are using defensive medicine Physicians are using defensive medicine as a form of risk managementas a form of risk management

This “malpractice pressure” has a more This “malpractice pressure” has a more significant impact on diagnostic testing significant impact on diagnostic testing than it does on treatment decisions. than it does on treatment decisions.

79% of MD’s admit to ordering more tests 79% of MD’s admit to ordering more tests than medically necessarythan medically necessary

74% referred to specialists74% referred to specialists

State ReformsState Reforms

Some states have reformed their litigation Some states have reformed their litigation systems and installed caps in a effort to lower systems and installed caps in a effort to lower the rise in premiumsthe rise in premiums– MICRA in CaliforniaMICRA in California

States with no caps have seenStates with no caps have seen– Increased health care costsIncreased health care costs– Increased insurance premiumsIncreased insurance premiums– Increased taxesIncreased taxes– Decrease in access to quality care resulting in threats Decrease in access to quality care resulting in threats

to quality of careto quality of care

Legal Challenges to Non-economic Legal Challenges to Non-economic Damages CapDamages Cap

West Virginia has a $1M cap on damagesWest Virginia has a $1M cap on damagesHas withstood two challenges to its Has withstood two challenges to its constitutionalityconstitutionalityHowever, support may be erodingHowever, support may be erodingFirst time – West Virginia Supreme Court First time – West Virginia Supreme Court voted unanimouslyvoted unanimouslySecond time – 3-2 Second time – 3-2 One of the judges who supported it is no One of the judges who supported it is no longer on the courtlonger on the court


Michigan - MCLA § 600.1483 – limits recovery of Michigan - MCLA § 600.1483 – limits recovery of non-economic damages to $280,000 (except in non-economic damages to $280,000 (except in some cases where it is $500,000).some cases where it is $500,000).

Two courts have ruled the cap unconstitutional Two courts have ruled the cap unconstitutional because the cap violates the Equal Protection because the cap violates the Equal Protection Clause of the 14Clause of the 14thth Amendment Amendment

Unlikely to hold up to appellate scrutiny since Unlikely to hold up to appellate scrutiny since law does base rational basis testlaw does base rational basis test

Neal vs. Oakwood Hospital Corporation, 575 Neal vs. Oakwood Hospital Corporation, 575 NW2d 68, 77(Mich. App. 1997) NW2d 68, 77(Mich. App. 1997)


Does federal government have the power Does federal government have the power to mandate a nationwide cap?to mandate a nationwide cap?United States vs. LopezUnited States vs. LopezUnited States vs. MorrisonUnited States vs. MorrisonSubstantive law of torts is an area of Substantive law of torts is an area of traditional state sovereignty traditional state sovereignty Congress will likely end up not being able Congress will likely end up not being able to do thisto do thisEven if Congress could, should they?Even if Congress could, should they?

ConclusionConclusion

Caps on non-economic damages can help to Caps on non-economic damages can help to slow the increases in malpractice premiumsslow the increases in malpractice premiums

This will make it easier for physicians to continue This will make it easier for physicians to continue to practice and see patientsto practice and see patients

The approach does have some serious The approach does have some serious drawbacksdrawbacks

Alternatives are available but are generally Alternatives are available but are generally unprovenunproven

““We don’t have four or five years for We don’t have four or five years for demonstration studies” – Donald Palmisanodemonstration studies” – Donald Palmisano

Education

Medical malpractice