Medical malpractice


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Presentation on medical malpractice from December 2003

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Medical malpractice

  1. 1. Medical Malpractice Brian Wells University of Florida December 9, 2003
  2. 2. The Medical Malpractice Crisis <ul><li>“Our badly broken medical liability system is responsible for higher costs for patients, lower quality of care, and for decreased access.” – President G. W. Bush </li></ul>
  3. 4. Why do we need medical malpractice laws? <ul><li>Medical Errors </li></ul><ul><ul><li>Kill between 44,000 and 98,000 per year </li></ul></ul><ul><ul><li>Medication errors harm about 7,000 per year </li></ul></ul><ul><ul><ul><li>1 per 131 outpatient deaths, 1 per 854 inpatient </li></ul></ul></ul><ul><li>Need for a way to deter medical errors and to compensate those harmed by substandard care </li></ul>Source: Institute of Medicine –
  4. 5. Medical Malpractice Statistics <ul><li>An average of 10,000 medical malpractice lawsuits are filed each year. </li></ul><ul><li>The median malpractice settlement in 1999 was $600,000 (63% increase from 1993). </li></ul><ul><li>The median award in cases involving obstetricians and gynecologists in 2000 was $1M (43% increase from 1999) </li></ul>
  5. 6. Medical Malpractice Statistics <ul><li>In the 1994 – 1996 period, 34% of all awards were > $1M </li></ul><ul><li>In the 1999 – 2000 period, 52% of all awards were > $1M </li></ul><ul><li>In Mississippi there have been 21 verdicts of $9M or more since 1995 (one of which was $100M) </li></ul><ul><li>Before 1995 there were no verdicts > $9M. </li></ul>
  6. 8. The Actions of Physicians <ul><li>MD’s are giving up practices or limiting practices to patients without health conditions that increase litigation risk </li></ul><ul><li>MD’s are moving to states with better legal systems and lower insurance rates </li></ul><ul><li>MD’s are changing their behavior to avoid suits </li></ul>Source: Confronting the New Health Care Crisis – 7/25/02: HHS – Office of Disability, Aging, and LTC Policy
  7. 9. Defensive Medicine <ul><li>Physicians are using defensive medicine as a form of risk management </li></ul><ul><li>This “malpractice pressure” has a more significant impact on diagnostic testing than it does on treatment decisions. </li></ul><ul><li>79% of MD’s admit to ordering more tests than medically necessary </li></ul><ul><li>74% referred to specialists </li></ul>
  8. 10. State Reforms <ul><li>Some states have reformed their litigation systems and installed caps in a effort to lower the rise in premiums </li></ul><ul><ul><li>MICRA in California </li></ul></ul><ul><li>States with no caps have seen </li></ul><ul><ul><li>Increased health care costs </li></ul></ul><ul><ul><li>Increased insurance premiums </li></ul></ul><ul><ul><li>Increased taxes </li></ul></ul><ul><ul><li>Decrease in access to quality care resulting in threats to quality of care </li></ul></ul>
  9. 14. Legal Challenges to Non-economic Damages Cap <ul><li>West Virginia has a $1M cap on damages </li></ul><ul><li>Has withstood two challenges to its constitutionality </li></ul><ul><li>However, support may be eroding </li></ul><ul><li>First time – West Virginia Supreme Court voted unanimously </li></ul><ul><li>Second time – 3-2 </li></ul><ul><li>One of the judges who supported it is no longer on the court </li></ul>
  10. 15. Legal Challenges to Non-economic Damages Cap <ul><li>Michigan - MCLA § 600.1483 – limits recovery of non-economic damages to $280,000 (except in some cases where it is $500,000). </li></ul><ul><li>Two courts have ruled the cap unconstitutional because the cap violates the Equal Protection Clause of the 14 th Amendment </li></ul><ul><li>Unlikely to hold up to appellate scrutiny since law does base rational basis test </li></ul><ul><li>Neal vs. Oakwood Hospital Corporation, 575 NW2d 68, 77(Mich. App. 1997) </li></ul>
  11. 16. Legal Challenges to Non-economic Damages Cap <ul><li>Does federal government have the power to mandate a nationwide cap? </li></ul><ul><li>United States vs. Lopez </li></ul><ul><li>United States vs. Morrison </li></ul><ul><li>Substantive law of torts is an area of traditional state sovereignty </li></ul><ul><li>Congress will likely end up not being able to do this </li></ul><ul><li>Even if Congress could, should they? </li></ul>
  12. 17. Conclusion <ul><li>Caps on non-economic damages can help to slow the increases in malpractice premiums </li></ul><ul><li>This will make it easier for physicians to continue to practice and see patients </li></ul><ul><li>The approach does have some serious drawbacks </li></ul><ul><li>Alternatives are available but are generally unproven </li></ul><ul><li>“ We don’t have four or five years for demonstration studies” – Donald Palmisano </li></ul>