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Health Care Reform Law Fails to Provide Remedies for Medical Malpractice
"We also know that (medical malpractice) has substantial effects on physicians' level of fear and willingness to practice good medicine."
Yet, the Patient Protection and Affordable Care Act does little to change the current liability system, making medical liability reform one of the biggest missed opportunities of the entire health care reform legislation, according to analysts.
The demonstration projects are required to promote the reduction of health care errors by encouraging the collection and analysis of patient safety data.
AAFP Identifies Medical Liability Reform as High Priority
"As one of its highest priorities, the Academy will continue to work on the professional medical liability problem," the principles say. "The professional liability insurance problem continues to have a negative impact on patients' access to care."
The document lays out the goals of the Academy in the area of liability reform. For example, the AAFP will continue to "be an advocate for the patient and to help (patients) obtain relief from costs related to professional medical liability insurance." In addition, the goals include
- advocating affordable premiums and premium differentials for family physicians,
- supporting study and implementation of nonlegislative solutions to the professional liability problem,
- supporting state and national legislative solutions to help physicians provide medical care in underserved areas, and
- supporting chapters by serving as a resource center to provide information on evolving solutions in other areas.
He noted that the Academy is dedicated to helping members in states where there are significant medical liability problems continue to fight for appropriate medical liability reform. "We will continue to offer to help and supply AAFP chapters with information about what comprises a good tort reform process in their states," said Goertz.
Those seven projects have the same goal as the demonstration projects called for in the health care reform legislation: develop alternatives to the current tort system to allow resolution of disputes about injuries allegedly caused by physicians and other health care providers.
Unlike the projects funded by the Patient Safety and Medical Liability Initiative, however, Congress has not yet appropriated funding for these new demonstration projects. Without funding, the net effect of the projects will be nil, said Mello. Even with funding, the demonstration projects will be inhibited by rules and regulations that could greatly diminish their effectiveness.
According to the law, only states can receive funding for the demonstration projects, and the projects cannot retract or modify a patient's existing remedies of state law, which is a major limitation, according to Mello.
"It means you cannot abridge the right of a patient to go to court," she explained. "You can't experiment with administrative compensation. You can't impose a limitation on the damages that a patient could be eligible for under state law. You can't do anything that leaves the patient in a different position legally than he or she was in before the demonstration project went into effect."
In the final analysis, the demonstration projects represent "a voluntary type of reform," said Mello. "There is always the possibility of someone coming up with a brilliant idea that no one has thought of and that would not run afoul of the (demonstration rules). But it certainly seems that the prospects for far-reaching experiments with reform are pretty circumscribed."
Debate Creates Impasse
The researchers found that the annual cost of the medical malpractice system is $55.6 billion in 2008 dollars, or 2.4 percent of annual health care spending. According to Mello, costs consist of four components: indemnity payments; administrative expenses; defensive medicine costs and other expenses, such as lost physician work time.
The study found that defensive medicine costs comprise the biggest part of medical liability costs, at nearly $46 billion a year. Defensive medicine is defined as patient management practices undertaken by physicians to minimize the likelihood of malpractice litigation.
"There are some states that have very lawyer-friendly laws pertaining to torts and, particularly, medical liability," said Goertz in an interview with AAFP News Now. "There are other states, like Texas, that have tighter medical liability tort law."
The AAFP has long pushed for a medical liability system that protects both physicians and patients. "It needs to be fair to the patient," said Goertz. "It needs to be fair to the physician, and ... it needs to be based on fact." In addition when awarded, compensation needs to go predominantly to the patient.
The creation of such a system may require the establishment of national minimal standards, Goertz said, adding that the AAFP is pushing for just such a policy.
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