A doctor in New York City, for example, should expect to pay at least five to seven times as much in medical malpractice insurance premiums each year as a similar doctor in California would pay. The following graph shows just how uneven medical malpractice costs are in the U. So clearly, doctors in some parts of the country are paying far more for their medical malpractice insurance than others, including myself, are.
Still, even most of the states with the highest per-capita medical malpractice costs have seen these costs drop in recent years.
So even in the states where medical malpractice costs are the highest doctors are paying less, on average, for their malpractice premiums and are less likely to get sued than they were just a decade ago. Now this should be good news for doctors everywhere. Possibly because healthcare costs in the U. In fact, the total amount spent in the U. Any doctor who has been sued for medical malpractice will tell you that it was a humiliating and degrading experience even if they won their case. This is why doctors will often recoil at even the mention of medical malpractice.
That brings us to the subject of defensive medicine. Still, we should at least be able to assume that the drop in paid medical malpractice claims each year since would likely result in doctors feeling less defensive. Yet our healthcare costs continue to rise. Also, what do we really mean when we say a test was unnecessary and why do doctors order such tests? Doctors order medical tests in order to detect a disease that might not be detectable simply by examining a patient. Standard screening tests, like mammograms or colonoscopies, are routinely done on healthy people but most other medical tests are performed because a doctor is worried that the patient might have an illness that a test could detect.
Instead we rely on protocols and our protocols do provide reasonably good guidelines for when we should order certain diagnostic tests on a patient. Most practicing physicians have been faced, at some point, with a patient whose disease defied the protocols. Whenever this happens, the doctor will feel blindsided and a lot less certain when dealing with future patients. No doctor wants to miss an important diagnosis and this is true even if there were no malpractice attorneys. Everyone is used to hearing that excuse, so it works.
If defensive medicine really were exclusively about the fear of malpractice then it should be easy to show that, in the states with higher malpractice costs, far more medical tests and procedures are done. The question is, why have they dropped by so much? An obvious answer might be that so many states have enacted tort reform laws aimed specifically at reducing the cost of medical malpractice. By , 33 states in the U.
How much of an impact have these laws really had? Before trying to answer this, I should explain that not all tort reform laws are the same. In fact, each of the 33 different laws for each state that has such a law is unique in its own way. Some states have very robust tort reform laws that place rather low caps on the damages that can be awarded to a plaintiff in a medical malpractice case whereas other laws have either very high caps or only cap damages in very specific cases like wrongful death.
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Though the differences in each state law makes it difficult to evaluate the overall impact of tort reform as a whole, there are enough similarities in many of the laws to make general comparisons. Before addressing how the different tort reform laws might have impacted medical malpractice costs, I need to explain how damages are awarded to plaintiffs whenever they win a medical malpractice case against a healthcare provider.
The total damages a plaintiff might be awarded can usually be split into two broad categories: economic damages and non-economic damages. The normal components of economic damages are lost wages, due to the persons temporary or permanent inability to work, and ongoing medical costs, if expensive medical treatment has been prolonged due to medical negligence. Most damage caps are aimed at limiting non-economic damages since those costs are rather subjective.
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Non-peer reviewed journals may also be admitted in similar fashion. The only criterion is the opinion of a single judge who, in all likelihood, has no relevant scientific or medical training. Many states also require that a certificate of merit before a malpractice lawsuit be filed which requires a report from a medical physician that the physician accused of negligence breached the standard of care and caused injury to the patient.
The plaintiff's damages may include compensatory and, in some states and under qualifying circumstances, punitive damages. There is only a limited time during which a medical malpractice lawsuit can be filed. In the United States, these time limits are set by statute.
Do Medical Malpractice Costs Affect the Delivery of Health Care?
In civil law systems, similar provisions are usually part of the civil code or criminal code and are often known collectively as "periods of prescription" or "prescriptive periods. Therefore, each state has different time limits set. Most states have special provisions for minors that may potentially extend the statute of limitations for a minor who has been injured as the result of medical malpractice. However, the authors also noted that the vast majority of malpractice claims did not lead to any indemnity payments.
The overhead costs of malpractice litigation are exorbitant. For every dollar spent on compensation, 54 cents went to administrative expenses including lawyers, experts, and courts. Claims involving errors accounted for 78 percent of administrative costs. A study of medical malpractice claims in the United States examining primary care malpractice found that though incidence of negligence in hospitals produced a greater proportion of severe outcomes, the total number of errors and deaths due to errors were greater for outpatient settings.
No single medical condition was associated with more than five percent of all negligence claims, and one-third of all claims were the result of misdiagnosis. Male doctors have nearly two and half times increased odds of having medico-legal action taken against them than female doctors, a result consistent across many years and found internationally. Doctors' groups, patients, and insurance companies have criticized medical malpractice litigation as expensive, adversarial, unpredictable, and inefficient.
They claim that the cost of medical malpractice litigation in the United States has steadily increased at almost 12 percent annually since However, more recent research from the U. These critics assert that these rate increases are causing doctors to go out of business or move to states with more favorable tort systems. In , data pooled from the industry by the publication Medical Liability Monitor indicated that medical malpractice insurance rates had declined for four straight years.
The decrease was seen in both states that had enacted tort reform and in states that had not, leading actuaries familiar with the data to suggest that patient safety and risk management campaigns had had a more significant effect. The majority of the American public supports reforms to the malpractice system. However, surveys show that the majority of the American public also vastly underestimate the extent of medical errors. At the same time, studies of these claims have found     that there is no problem of increasing malpractice verdicts and insurance costs driving doctors out of business.
The traditional approach to liability reform is to limit the amount of damages that can be recovered by a plaintiff as noted above. Several new approaches to addressing medical malpractice have been investigated. Several laws have been passed to facilitate communication and resolution Mandatory presuit notification laws, apology laws and State-facilitated dispute resolution laws. Safe Harbors for Adherence to Practice Guidelines: This approach provides a defense for physicians if they follow pre approved clinical practice guidelines.
Judge-directed compensation: A group of judges with expertise in medical malpractice meet with each sides attorneys and negotiates a settlement between the parties. Administrative Compensation:Sweden and New Zealand created health courts. Claims are sent to these courts that have the authority to settle a claim. Attorneys are not required and the claims are settled based the opinions of neutral experts.
Compensation is awarded based on preset schedules and are based on the degree of injury. Many jurisdictions placed non-economic damages caps that limit the amount that victims of medical malpractice  can recover from negligent physicians, purportedly in an effort to decrease hospital and physician costs. According to the Supreme Court of California, "noneconomic damages compensate the plaintiff for 'pain, suffering, inconvenience, physical impairment , disfigurement and other nonpecuniary damage [as per Cal.
Code section However, according to the Supreme Court of California, the state's non-economic damages caps are "not a legislative attempt to estimate the true damages suffered by plaintiffs, but rather an attempt to control and reduce medical malpractice insurance costs by placing a predictable, uniform limit on the defendant's liability for noneconomic damages.
Wrong or Late Diagnosis in the American Healthcare System
Texas law creates the most difficult "hurdles" in the United States for a plaintiff to succeed in recovering damages for any medical malpractice, even for such objective cases such as an emergency room exposure to the Ebola virus disease. Texas passed a "tort reform" law taking effect on September 1, Following , medical malpractice insurance rates were reduced in Texas. Various studies have shown that the Texas tort-reform law has had no effect on healthcare costs or the number of physicians practicing in the state. Plaintiffs' lawyers say that the Texas law prevents patients from getting compensation or damages even in cases where the patient clearly deserves it.
An August National Bureau of Economic Research paper by Katherine Baicker and Amitabh Chandra found that 1 "increases in malpractice payments made on behalf of physicians do not seem to be the driving force behind increases in premiums"; 2 "increases in malpractice costs both premiums overall and the subcomponent factors do not seem to affect the overall size of the physician workforce, although they may deter marginal entry, increase marginal exit, and reduce the rural physician workforce"; and 3 "there is little evidence of increased use of many treatments in response to malpractice liability at the state level, although there may be some increase in screening procedures such as mammography.
A study by Daniel P.
Do Medical Malpractice Costs Affect the Delivery of Health Care?
Kessler and Mark McClellan analyzing data on elderly Medicare beneficiaries treated for two serious cardiac diseases in , , and determined that "malpractice reforms that directly reduce provider liability pressure lead to reductions of 5 to 9 percent in medical expenditures without substantial effects on mortality or medical complications. A a Congressional Budget Office CBO report using data from a private actuarial firm and the Centers for Medicare and Medicaid Services CMS found that malpractice costs excluding " defensive medicine " account for less than 2 percent of health care spending.
In , the CBO "concluded that implementing a package of five malpractice reforms would reduce national health spending by about 0.
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A study by Michelle M. Mello and others published in the journal Health Affairs in estimated that the total annual cost of the medical liability system, including "defensive medicine," was about 2. The researchers, led by Daniel A. Waxman, examined 3. The study found that the laws had no effect on whether doctors ordered resource-intensive care e. From Wikipedia, the free encyclopedia.
Professional medical negligence in the US. Main article: Statute of Limitations. Further information: Medical error. Main article: Tort reform. November 26, Proceedings Baylor University. Medical Center. Getting the Number Right". Archived from the original on May 18, October 25, September Journal of Patient Safety. Retrieved August 13, How To Find Out". Retrieved March 7, July Baylor University Medical Center Proceedings. BMJ Open. June Cardiovascular Therapeutics. Suicide--The medical-legal implications. Psychiatric Forum. Law and Contemporary Problems.
Retrieved May 31, Journal of the Missouri Bar. Archived from the original on January 23, Journal of Clinical Forensic Medicine. Expert Law. The New York Times. Purdon's Pennsylvania Statutes and Consolidated Statutes. Thomson Reuters. Retrieved October 3, National Conference of State Legislatures. March 20, Qual Saf Health Care. BMC Medicine. The Business Journal, Jun 11, , accessed August 3, Yes and No. Medscape Medical News, October 5, University of Chicago Press, Page 3, "First, we know from the California study, as confirmed by more recent, better publicized studies, that the real problem is too much medical malpractice, not too much litigation.