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Editorial January 2010

The Need for Medical Liability Reform Is Real

Ronald T. Burkman, MD

Amidst all the discussions of health care reform, the debate regarding the need for liability reform, particularly championed by ObGyns, may seem to some like privileged professionals (doctors and lawyers) with vested interests haggling over money, leaving patients to fend for themselves. But the concerns raised by ObGyns are real, and the chilling effects are too critical to ignore: Good clinicians are either leaving or altering how they practice high-risk specialties such as obstetrics, and patients are finding access to health care more difficult.

When a practitioner gets sued, he or she undergoes a wide range of negative emotions during the lengthy process. This is particularly true for obstetricians when a bad outcome occurs—despite overwhelming scientific evidence that indicates the vast majority of such outcomes are not due to malpractice. Win or lose, the clinician may have a sense of relief but becomes wary with patients and more likely to order unnecessary tests or consultations or perform more surgery, such as cesarean delivery, to protect against future lawsuits. Further, when the cost of liability insurance climbs to the current high levels, it becomes easy for clinicians to discontinue high-risk services like obstetrics, because they are already under intense pressure. In many instances, this strategy is taken by responsible clinicians with extensive experience. These concerns are highlighted in a recent survey involving 5,644 ObGyns.1

This 2009 ACOG survey of its fellows’ activities since January 2006 reported that the average age at which the members stopped providing obstetrical services was 48; about 8% of all respondents had stopped practicing obstetrics altogether. Approximately 30% of those completing the survey had decreased the number of their high-risk obstetrical patients. About 26% had stopped delivering vaginally after a cesarean birth, and greater than 29% were performing more cesarean deliveries than before.

Clearly, there is a need for reform. Although traditional approaches such as placing caps on noneconomic damages have a proven track record in controlling the cost of premiums in states like California and Texas, this unfortunately has inadequate national legislative support. Alternative approaches such as health courts, mediation, and binding arbitration, designated compensable events, and disclosure and offer programs may ultimately be effective but are unlikely to be adopted widely in a short period of time. These approaches and others were discussed in greater detail in our December LegalEase article.

One of the barriers to the adoption of meaningful tort reform on a national level has been the perception that such reform would have little effect on the cost of health care. However, as outlined in a letter dated October 9, 2009, to Sen Orrin G. Hatch, the Congressional Budget Office concluded that tort reform proposals that include a cap on noneconomic and punitive damages, shortening the statute of limitations, and replacing joint-and-several liability with a fair-share rule, as well as other proposals, would result in a reduction of the federal deficit by about $54 billion over the next 10 years.2 These savings would be based on the reduction of the cost of liability insurance and a reduction in the use of health care services due to the practice of defensive medicine.

Lest we be viewed as only self-serving in this endeavor, one must recognize that responsible clinicians overwhelmingly acknowledge that they are accountable for their actions with patients, that bad clinicians must be weeded out, and that patients, if victims of real malpractice, must have a means of addressing their grievances. The current system, however, is costly and unfair to both patients and health care professionals.

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Ronald T. Burkman, MD, Editor-in-Chief

References

1. 2009 Medical Liability Survey. ACOG: Washington, DC; September 2009.
2. Letter to the Honorable Senator Orrin G. Hatch from Douglas W. Elmendorf, Director, Congressional Budget Office, US Congress, Washington, DC; October 9, 2009. Available at: www.cbo.gov/ftpdocs106xx/doc10641/10-09-Tort_Reform.pdf. Accessed November 23, 2009.