Medical Malpractice and Reform

Medical malpractice continues to be a dilemma over the years.  There continues to be a rise in cost and it does not deter injuries.  Victims do not get compensated efficiently. Unfortunately everyone has a different solution to the problem. Lawyer, Physicians and medical malpractice insurers do not agree how to fix the problem since they see the problem differently. Some people blame the greedy lawyers and runaway juries. (Lindsey Sloan, 2008) Others blame interest rates and pricing by the insurers.  Medical malpractice take years in the court system to resolve and is very expensive.  If medical malpractice was working we would see a link to improved quality in healthcare. The fact is there is more malpractice than there are lawsuits for malpractice. (Baker, 2007) Malpractice is costly although most cases are settled before they go to court.  Most are paid because of errors in diagnosis, surgery and treatment. (Bhat, 2001)

Malpractice insurance companies are for profit companies although highly regulated by the states. Malpractice insurance is based on low frequency and severity of the claims. Malpractice claims usually take years to resolve unlike other types of claims. All types of insurance companies experience business cycles. Cycles are “soft” and “hard” market conditions. Profits decline in soft markets while premiums rise in hard markets.  The availability of insurance policies goes down during hard market. The political pressure for change is usually stronger during the hard market. Premiums are calculated by future risks and expected income from investments. (Lindsey Sloan, 2008)

Some people think there is a link between the severity of the claim and rising premiums. Many people also believe medical malpractice is the reason for rising healthcare (Lindsey Sloan, 2008 p. 52).  Physicians say they order more test because they are afraid of being sued. This does not sound like a system that is working efficiently. Insurance companies base the premium on the physicians’ specialty. Obstetrics pay the highest premiums. The premiums are calculated based on attorney fees and likelihood of claim payment. They are also decided by area because of state regulations. (Bhat, 2001) In the seventies and the eighties there was a period of crisis in the system.  (Hennesy, 2004).There was a long time between when claims filed and time a claim settled back then. The long statute of limitations also increased the time so insurance companies raised premiums so high that some physicians were unable to pay. (Hennesy, 2004)There were malpractice tort reforms in the seventies because of rising premiums. Sloan did an analysis back then on the effect of premiums and tort reform. Statute of Limitations and damage caps were actually the only two tort reforms that reduced premiums according to the study. The insurance companies were to blame for the crisis in the eighties. They were underestimating and underreporting there financial situation. During this time claims frequency increased by ten percent. Severities of claims were double the inflation rate during that time. States had started defining the standard of care. Nine states enacted caps on malpractice value awards. Two capped pain and suffering while seven capped total damages. Some states created patient compensation funds. This fund would kick in after the physician paid his portion of the award. (Hennesy, 2004)Many more states enacted reform in the eighties because of rising premiums and unavailability of insurance in the eighties. In the eighties the states focus on regulation and availability. A Federal bill on reform was passed by the Senate and House of Representatives in 1995. It had caps, limits on attorney fees and restrictions on frivolous suits. Unfortunately the President vetoed the bill and the congress has not overturned the veto. Hospital malpractice premiums have also risen and tort reform has had very little effect.

Medical Malpractice is a complex law suit. It begins with an accident and then blame. Tort law has requirements. There are four elements required to a bring a malpractice suit to court. There must be a duty, and a breach. The duty must have caused the injury and then there must be damages. The duty has to do with the standard of care. One of the cases that brought the standard of care to the court system was Hall v. Hillbun. The case Hall v. Hillbun is a malpractice suit questioning the standard of care with surgeons. Terry Hall had an exploratory laparotomy by Doctor Hillbun because of abdominal pain.  Doctor Hillbun went home after the patient was sent to a private room. Her husband stayed with her until she expired the following day. He complained multiple times to the nurse that his wife was having difficulty breathing and the nurses told him that was normal after surgery. She was given sedatives repeatedly so she could sleep since she was also complaining about pain. Her husband noticed that his wife was turning pale and a bluish color. He screamed. At this time the Doctor was called but by the time he got to the hospital the patient expired. Doctor Hillbun made no follow up contact with the patient nor did he call to inquire about the condition of this patient after he left the hospital. He also did not give the nurses instruction for post operative care. The autopsy revealed a sponge was left in the abdominal cavity although this did not cause the death. She died of respiratory failure. The plaintiff called in Doctor Hoerr, a retired surgeon from Cleveland who testified that Mrs. Hall did not receive the care she should have. The plaintiff sought to establish that there is a national standard of care and Doctor Hillbun is obligated to adhere to it. Unfortunately Doctor Hoerr’s testimony was excluded under the trial judge’s ruling. The defense also had an expert witness that stated there is a difference between standard of care in Ohio than in Mississippi. The defense’s expert was also excluded. At the conclusion of this trial the defendant moved for a directed verdict on the ground the expert testimony was excluded, the plaintiff failed to present a legally sufficient quantum of evidence to establish a prima facie cases. The circuit court granted the motion.  Since physicians are more mobile now as they get their degree in one state their residency in another and establish a practice somewhere else there are fewer differences in the standards. Laws of medicine do not vary from state to state. The physicians have a duty to render services with a minimal acceptable level of competence given the level of expertise they hold themselves out as possessing. The services include but are not limited to examination, history, testing diagnosis, course of treatment, medication, surgery, follow up, and aftercare. “Fairness and reason must be considered when applying the duty of care to the facts of the world of medical science and practice. A duty to render quality of care must equal the level of medical and practical knowledge the physician may reasonable be expected to possess and the medical judgment he may be expected to exercise and a duty based upon the adept use of medical facilities,services,equipment and options as are reasonably available.  For example a physician in a rural area cannot be faulted for not performing a MRI when the necessary facilities are not reasonably available.” A physician also cannot be liable for a mere error in judgment. A Mississippi jury was instructed on the standard of care:” A physician is required to provide his patients with the same degree of care skill and diligence which would be provided by minimally competent reasonable prudent physician in the same field of practice under the same or similar circumstance and who has available to him the same general facilities resources and options. Therefore medical negligence or malpractice is defined as a physician’s failure to provide a patient with that degree of care skill and diligence which would be provided by a minimally competent, reasonable prudent physician in the same specialty when faced with the same or similar circumstances.” “Courts also expect the standard of care to follow technology at the time of diagnosis or treatment was offered to the patient. Physicians who hold themselves out as having specialized knowledge will be held to the standard of specialists with those enhance qualifications.” (Supreme Court of Mississippi, 1985.) This trial like many others tries to define the standard of care that a physician must provide.

The practice of defensive medicine is when a physician orders a test or procedure and visits primarily because he has fears of a lawsuit. Many people believe this is an incentive for reform because stopping the practice of defensive medicine would lower healthcare costs. There has been attempt to study this behavior but it is very difficult to measure. The Office of Technology Assessment tried to examine this behavior in the nineties. A large part of the study was through physician surveys. Liability has the biggest impact on Obstetrics. Obstetrics have seen their premiums four times higher than their other costs. Their rising costs seem to lead them to practicing defensive medicine. American College of Obstetrics and Gynecologist believe eighty billion dollars are spent each year because of the practice of defensive medicine. In Pennsylvania as survey was conducted by Studdart, Brennan and Sage. They questioned two hundred obstetricians and found ninety three percent admitted they were practicing defensive medicine. Fifty four percent admitted to ordering tests because of fear of a law suit. Many physicians also stated they would avoid high risk procedures and high risk patients. (Mark D. Pearlman) One study perfomed by the Harvard Medical practice found a link with cesarean sections and medical malpractice risk of the hospital.A woman was thirty perment more likey to have a cesarean in a hospital with high risk than a low risk hospital. (Baker, 2007 p.98) Cesaren secion have risen in the United Stsates by aproximaly seven percen between 1980 ansd 1989. (Bhat, 2001 p.182). This is unacceptably high. Cardiolgists also may be practicing defensive medicine. Kessler and McClellan did a study of heart disease and the pracice of defensice medicine. Heart disease is the most expensive disease and may cause dealth. They used Medicare’s database to asist them in the study.. Many of the phsicians did not order the expensive tests in the states that had reform while more ordered it in the states without reform. The states without reform also did not imrove mortality rates. Tort reform is not the answer to fixing this behavior. Improving outcomes and risk management will (Baker, 2007p.128).

Jury behavior seems to affect damages awarded. There have been studies showing that jurors made their decision based in part on irrelevant facts like physical characteristics. Since there is no educational requirement to be a juror they may not understand the technical issues of a case. Sometimes technical issues of the case are the key issues and attorneys rely on the jurors’ ignorance. Punitive damages seem to be very high in malpractice cases. Healthcare courts may be an answer to solving this problem, in a healthcare court there will be more of a streamlined process. In a healthcare court there would be no jury. The experts were be paid by the court to preserve neutrality. Compensation is set by an independent party. The physician must tell the patient instantly of an adverse event. The judges would only work on malpractice cases making them high specialized. Some people against this idea feel it will not lower cost because there will be a rise in claims. (Lindsey Sloan, 2008)

Most experts agree that our medical malpractice system is broken but there are no clear solutions. Giving incentives to prevent injuries may help to increase patient safety. Enterprise insurance is another idea to fix the system. This would shift the responsibility to the hospital. The hospital would be liable for the negligence of its physician and also be responsible for maintaining patient safety. They are responsible for hiring the physician so they can dismiss a physician who is negligent. Clinton tried to model the enterprise insurance in his reform. Their plan was to transfer liability from the physician to the health plan. Physicians did not like this plan. No fault insurance is another possible solution. Patients would agree not to sue in these types of plans. Hospitals would charge a premium to patients who agree to no fault. (Lindsey Sloan, 2008) Governor Cuomo is looking at malpractice reform to offset cuts in Medicaid. One of the solutions he is looking at is capping pain and suffering to two hundred fifty thousand. (Opinion, March 12, 2011) Medical malpractice has a lot of possible solutions but a lot of poltical hurdles before they can be passed. As in all healthcare reform this will not be fixed overnight but hopefully we will begin to take steps to fix our system.