Malpractice reform efforts pit uniformity vs state autonomy

A malpractice reform bill introduced earlier this year in the U.S. House of Representatives, the latest attempt to rein in medical malpractice awards on a national level,  already has run into some conservative opposition on Capitol Hill.

The Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2016 is supported by several medical groups, such as the American Academy of Family Physicians (AAFP) and the American College of Physicians (ACP), as well as by insurers, while the American Bar Association (ABA) opposes it.

Key provisions of the measure include a $250,000 limit on non-economic damages in medical malpractice cases, a “fair share rule” that allocates damages in proportion to fault, a time limit of three years after manifestation of injury for filing suits or one year after the claimant discovers the injury, whichever occurs first.

The bill also places limits on the fees attorneys can collect from claimants in malpractice cases, setting a sliding scale from 40% of the first $50,000 awarded to 15% of any amount over $600,000.

Neither backers nor opponents think Congress will act on the measure in presidential election-dominated 2016. Rather, they expect the issue to surface in the next Congress.

“We think we need uniformity whereby doctors will be playing by the same rules and patients will have the same rule all across the country,” says Mike Stinson, vice president of government relations and public policy with the Physician Insurers Association of America (PIAA) regarding the group’s support for the measure.

The ABA, in a letter to the House Judiciary Committee, argues that medical liability is an issue for states, not the federal government, to regulate. “For over 200 years, the authority to determine medical liability law has rested in the states. This system, which grants each state the autonomy to regulate the resolution of medical liability actions within its own borders, is a hallmark of our American justice system,” the association says. 

Some conservative members of the House Judiciary Committee have raised the same issue about the proposal. The Judiciary Committee has postponed marking up the bill because of the conservatives’ objections over the states’ rights issue.

In a rare display of bipartisanship, several committee Democrats also voiced opposition to the bill, agreeing with conservative Republicans that medical malpractice should be left to states to address.

Similar measures have been introduced in Congress in the past but failed to pass. “We’ve supported an iteration of this bill for years now,” notes Ryan Crowley, ACP senior associate for health policy.

In its letter of support for the measure, the AAFP wrote that it “supports the HEALTH Act’s significant reforms that will help repair the flawed medical liability system, reduce the growth of health care costs and preserve everyone’s access to medical care.”

Proponents argue that limiting malpractice claims on a national level will mean doctors will have less reason to practice defensive medicine, ordering numerous tests to cover themselves against potential lawsuits, and that in turn will reduce costs. Lower premiums and less fear of malpractice lawsuits would encourage more doctors to continue practicing, backers have said.

But UCLA law professor Allison Hoffman, JD, contends that while various state efforts to rein in med mal claims may have cut insurance premiums for doctors, problems remain. “The evidence on where that improves the quality of care or physician supply is still really inconclusive,” she says. “These laws have definitely cut claims.  But that’s not the end goal.” 

John Frank is a contributing author. How should Congress reform medical malpractice? Tell us at: medec@advanstar.com