The Washington Post recently published an article titled, “Top Republicans say there’s a medical malpractice crisis. Experts say there isn’t.” This is an old, ongoing debate, and depending on who you listen to, we’re either in a crisis that is driving up the cost of medical malpractice insurance, forcing providers to practice defensive medicine, and physicians are in constant fear of a lawsuit, or we are in a time of relative calm, medical malpractice claims are at historic lows, and medical malpractice insurance premiums have dropped to record lows. So what is the real truth? Shouldn’t we just be able to look at the data and let the facts prove one side or the other?
The problem that perpetuates this debate is that for decades medical malpractice has been a highly politicized topic. Physicians and conservative lawmakers have been pushing the need for limited litigation and caps on medical malpractice payouts, while plaintiff’s attorneys and liberal lawmakers claim that patients’ rights are violated by such reforms and protections for physicians are unfair.
The reality in 2017 is that medical malpractice insurance industry experts agree that there is no crisis, and the insurance market has been stable for over 10 years. According to the Washington Post article, “Doctors are paying less for malpractice insurance than they did in 2001 — even without adjusting for inflation, according to the Doctors Company, one of the nation’s largest malpractice insurers. And the rate of claims has dropped by half since 2003.” With the exception of New York and a few other states, physicians across the U.S. are enjoying a favorable practice environment without constant fear of a medical malpractice claim.
According to the article, conservative lawmakers like Rep. Tom Price (R-Ga.), who is set to become the next head of Health and Human Services pending Senate confirmation, claim that protections for physicians and medical malpractice tort reforms have proven successful in many states. California, Texas, and others have placed a limit on the amount of money a patient can receive for non-economic damages such as pain and suffering. While some states have declared these caps unconstitutional, both California and Texas have some of the lowest malpractice insurance rates in the country. Those in opposition to reforms say that many other factors contributed to a stable environment in those states, and that the caps have done nothing to reduce the amount of excessive tests and procedures physicians order in the service of so-called defensive medicine.
Statistics and opinions vary on the real cost of defensive medicine in the U.S. Politicians debate anywhere from $100 billion to over $500 billion of total healthcare costs can be attributed to defensive medicine. But in contrast, according to an article published in JAMA Internal Medicine by the American Medical Association, a study by the Cleveland Clinic in 2014 estimates more like $46 billion is spent annually on unnecessary tests and procedures ordered by physicians in order to protect themselves from litigation. But there is little or no evidence to show that tort reform has had any effect on the practice of defensive medicine.
Opponents of the types of tort reform advocated by Republicans like Paul Ryan and Secretary Price say that any real reform needs to not simply lower risks for doctors, but instead should be aimed at actually reducing the number of medical errors. Michelle Mello, a Stanford University law professor and health researcher is quoted in the Washington Post piece saying, “To take any malpractice reform seriously, it has to offer something to improve the situation of patients and lead to safer outcomes.” This view takes into account the rather startling fact that medical errors are the third-leading cause of death in the United States behind cancer and heart disease. These critics say that if we reduce the number of errors then we will necessarily decrease physicians’ risk and liability.
So – Is there a medical malpractice crisis in the U.S.?
Whatever your view, it seems likely that this issue will remain a lively one, but that some types of reform, probably more along the lines of limiting risk for physicians are likely to come sooner than later if the Republican Congress is able to carry through with their plans to repeal and replace the Affordable Care Act. Perhaps we will see that in tandem with some concrete steps to reduce medical errors and the market will remain stable, while risk for doctors and patients goes down. Here’s hoping for another good year in 2017.
