Medical liability: health reform's next step

Congress should pass the HEALTH Act to restrain health spending growth while preserving patient access to high-quality physician care.

Posted Feb. 7, 2011.

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No matter where a policymaker stands on health reform, one common theme that emerges in any discussion about overhauling the health system is the need to reduce spending growth while ensuring access to quality care.

That's why the House leadership is doing the right thing by making medical liability reform one of its top legislative priorities for the year. By approving the Help Efficient, Accessible, Low-cost, Timely Health Care Act of 2011, the newly introduced and appropriately named HEALTH Act, Congress can take a major step forward in reducing the costs to the system and lessening the harm to patient access posed by frivolous lawsuits and the practice of defensive medicine.

Some of the evidence that the nation's medical liability system is badly broken almost defies belief. A recent American Medical Association report found that an average of 95 claims are filed for every 100 physicians. That would be as if nearly every doctor in the U.S. had been sued once in the course of a career. How many other professions can report such an ignominious statistic?

Physicians are fighting the odds to get through their careers without being dragged into this quagmire. More than six in 10 physicians age 55 and older have been the subject of a medical lawsuit.

The condition is much more acute for such physician specialties as obstetrics-gynecology and general surgery -- not exactly the best recruiting material for medical students who are considering those areas.

The growing number of physicians who have seen the dark side of the liability system know that a large majority of these cases are dropped or dismissed outright. But that doesn't mean they are without financial consequence -- not by a long shot. On average, physicians can expect to incur legal costs of more than $25,000 for every claim against them.

For cases that go to trial, a physician's average legal bill can reach $140,000 or more, even if he or she ends up winning the case.

These mind-boggling figures add up to a whole lot of money that could go toward preventive care and treatment of serious illnesses.

That's why Congress must approve the HEALTH Act this year. By implementing damage caps, statutes of limitations and limits on attorneys' fees, the measure would help free physicians from the liability system's culture of fear while still ensuring that patients filing legitimate claims are justly compensated for their injuries.

The legislation is important enough that 100 physician and medical organizations have joined the AMA in endorsing it.

The caps of $250,000 on noneconomic damages -- and for punitive damages, $250,000 or twice the amount of economic damages -- are not just common-sense limits. They are also tried and true remedies in states like California, where a liability overhaul on the books since 1975 has become the gold standard for implementing tort reform in a way that preserves patient access to care.

Physicians recognize that the liability climate differs depending on the state in which one practices. The HEALTH Act acknowledges that, too, by allowing individual states to set higher or lower limits on damages if their legislatures deem it necessary.

And nothing in the proposed legislation would prevent the federal government or the states from testing innovative medical liability alternatives, such as health courts, early-offer programs and evidence-based medicine safe harbors.

In his Jan. 25 State of the Union address to Congress, President Obama said he would be willing to consider medical liability reform as part of the ongoing effort to restrain the growth of health costs. Lawmakers should give the president that chance by approving the HEALTH Act and sending it to his desk this year.

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