Physician reaction mixed to medical malpractice bill

After years of trying, Republicans in Congress may finally be making headway about placing limits on noneconomic damages in some malpractice cases.

The issue for doctors is whether passage of the bill being considered will change how they practice medicine. Bill backers think it will lessen the use of defensive medicine. Others, however, raise doubts about the measure’s long-term impact on physicians.

“Doctors like to talk about how tort reform can help ease their defensive medicine fears, but I don’t believe it,” says Richard G. Roberts, MD, JD, a physician and faculty member at the University of Wisconsin School of Medicine and Public Health. 

A House bill places a $250,000 noneconomic damages cap in cases where coverage for the insured was provided by or subsidized by the federal government. The Congressional Budget Office estimates this would save the federal government roughly $50 billion from 2017 through 2027 due to lower payouts for Medicare- and Medicaid-related cases.

The measure would not preempt state damage cap laws. Both provisions were included to appease conservatives, who have opposed such federal proposals on the grounds that insurance was a state matter.

Medical groups such as the American Medical Association, the American College of Physicians (ACP) and the trade group for malpractice insurance issuers, the Physician Insurers Association of America (PIAA), all support the bill, which passed the House and awaits Senate action.

The bill requires that parties found liable will be responsible for paying damages proportional to their responsibility in a case. It also imposes a statute of limitations of three years for bringing legal action after an injury or a one-year limit after a claimant discovers an injury, and sets limits on attorney contingency fees.

Mike Stinson, PIAA’s vice president of government affairs, says the House bill includes reforms that have “proven successful” at the state level. 

The ACP sees the bill as a first step in addressing malpractice and defensive medicine, says Shari Erickson, ACP’s vice president of governmental affairs and medical practice. ACP has advocated a multi-pronged approach to malpractice reform, including calling for special medical courts to hear such cases without juries, she notes.

But not everyone thinks the House bill will have long-term benefits.

Roberts, who also maintains a primary care practice, says factors other than malpractice concerns contribute to the proliferation of testing. Often, patients themselves insist on more tests than may be medically necessary for their peace of mind, he explains. “People are rarely second guessed for doing something; we’re second guessed for not doing something,” he says.

Richard Boothman, JD, executive director of patient relations and clinical risk and chief risk officer with Michigan Medicine, has defended the medical center in malpractice cases. 

“This approach, the tort reform approach, is the equivalent of treating a patient with pneumonia purely with aspirin to lower the temperature but not getting to the root cause,” says Boothman. “Historically, medicine has not been good at self-policing. In many places, the only way to hold anyone accountable is through the courtroom,” he says.  

John Frank is a contributing author. Do you think the bill will help physicians? Tell us at medec@ubm.com.