Professional Medical Liability

Academy Goals and Methods

As one of its highest priorities, the Academy will continue to work on the professional medical liability problem. The professional liability insurance problem continues to have a negative impact on patients’ access to care. No responsible party in the medical profession denies the existence of malpractice and the right of a fair recovery to the negligently injured patient.

The goals of the AAFP in this area are:

1. To be an advocate for the patient and help them obtain relief from costs related to professional medical liability insurance and to support solutions that more equitably and quickly compensate those truly injured in the course of medical care.
2. To be an advocate for family physicians regarding any mechanism for: (1) affordable premiums; (2) differential premiums for beginning and part time physicians; and (3) equitable premium differentials for family physicians who provide obstetrical and surgical services based on sound actuarial evidence and standards of care.
3. To encourage and support in depth study and implementation of non legislative solutions to the professional liability problem.
4. To encourage and support state and national legislative solutions to aid physicians providing medical care (including obstetrics) in underserved areas. Such relief could be in the form of tax relief, partial payment of professional liability insurance premium and/or loan forgiveness.
5. To support chapters by serving as a resource center to provide information of evolving solutions in other areas. (1976) (2004)

The American Academy of Family Physicians supports the following federal liability reforms:

1. A limit on payments on "non-economic damages,"
2. Reducing awards by the amount of compensation from collateral sources,
3. Allowing periodic payment of future damages at a defined award limit,
4. Limiting attorneys' contingency fees,
5. Replacing joint and several liability with proportionate liability among the defendants in a case,
6. Reduce statute of limitations for commencing professional liability actions to one to three years after injury, with an absolute limit of six years for minors,
7. Incentives for states to establish Alternative Dispute Resolution Systems, and
8. An expert affidavit that must be provided by a specialist who possesses knowledge and expertise and practices in the same medical specialty as the defendant.

Other methods that the Academy believes will be helpful in stabilizing unacceptably high liability premiums and aid in abating the medical liability problem are:

1. Secure state legislation requiring joint underwriting associations (JUAs), consisting of all casualty insurance carriers in the state, to provide professional liability coverage on a collective basis.
2. Redefine, by legislation, medical negligence and liability, including specific designations concerning implied warranty and informed consent.
3. Legislate limits on awards including, but not limited to, limits on awards for total damages, non economic damages, damages for dependent care, wrongful death benefits and limited punitive damage awards.
4. Mandate catastrophic insurance coverage.
5. Make information concerning collateral sources of income, and the tax status of awards, admissible in evidence.
6. Increase disciplinary authority of state boards of medical examiners.
7. Require 60 days advance notice of intention to sue.
8. Affirm a physician's right to recover from plaintiff reasonable legal costs and attorney's fees in successful defense of professional liability suits.
9. Eliminate the ad damnum clause in the filing of lawsuits.
10. Require that accompanying the filing of a claim is an affidavit from a physician stating the physician's opinion that the claim has merit.
11. Require that expert witnesses meet specific requirements (see Academy's policy regarding expert witnesses).
12. Required that insurance companies provide information regarding economic versus non-economic damages and settled versus verdict cases to state and national regulators.
13. Raising the evidentiary standard in medical liability cases to require "clear and convincing" evidence. (1975) (January 2022 COD)