Health Reform Action Center


 Medical Liability Reform

The Affordable Care Act did not include meaningful medical liability reform as recommended by ACOG. Although no liability reform provisions survived in the final bill, Congress made clear the need for more experimentation. The ACA authorized $50 million for the five year fiscal period starting in 2011 for States and health care systems to test new approaches to the resolution of medical injury disputes. ACA also authorized HHS to issue planning grants for up to $500,000 for the development of grant proposals. This authorization supplemented the $23 million that the federal Agency for Healthcare Research and Quality (AHRQ) awarded in 2010 for projects to advance new approaches to medical injury compensation and patient safety.

ACOG POSITION 

ACOG has always taken a strong stance on liability reform, learn about our positions at the varying levels of the fight to reform liability, below: 

 View also:

 

ACOG Recommendations

For the Congress

  • Pass proven medical liability reforms such as those enacted in California and Texas.
  • Pass a national birth injury compensation program similar to the National Vaccine Injury Compensation Program and modeled on the Florida NICA program to support children born with substantial, non-progressive, neurologic motor deficits not caused by genetic or metabolic conditions.
  • Appropriate funds -- as authorized under the Patient Protection and Affordable Care Act (ACA) -- for States to develop, implement, and evaluate alternatives to current tort litigation.
  • Health care reform must include liability protection for physicians who practice within evidence-based guidelines.

For State Legislatures

  • Pass proven medical liability reforms such as those enacted in California and Texas.
  • Pass a birth injury compensation program modeled on the Florida NICA program to support children born with substantial, non-progressive, neurologic motor deficits not caused by genetic or metabolic conditions.
  • Repeal malpractice laws that place physicians at risk for engaging in peer review and risk-management activities and grant immunity for these safety-enhancing activities.
  • Pass laws granting immunity or safe-harbor protection to doctors, medical groups and health care institutions that treat patients in conformity with evidence-based guidelines. When scientific evidence is sufficient to support a medical practice, physicians should be able to rely on that evidence in their clinical decision-making without fear of liability. No state currently has a formal safe-harbor except Kentucky which allows this under its worker’s compensation system.
  • State and local safe-harbor projects should ensure sufficient liability protections to physicians for diagnosis and treatment in compliance with the guidelines.
  • All states should allow prompt disclosure to patients of unexpected problems while protecting physicians from having those discussions used against them in court. Thirty five states have laws that protect physicians who say “I’m sorry.”

For the Federal Trade Commission and the Antitrust Division of the Justice Department

  • Provide safe-harbor protection under the anti-kickback statute and remove other barriers to pooling risk between hospitals and physicians. To help stabilize medical liability premiums, hospitals and other organizations must be allowed to offer shared, subsidized liability coverage to affiliated physicians.

For the federal Department of Health and Human Services, Centers for Medicare and Medicaid Services, and Agency for Healthcare Research and Quality

  • Provide adequate and sustained funding for the 2009 Patient Safety and Medical Liability Initiative. Under this Initiative, states and health systems have been awarded demonstration and planning grants to evaluate and implement evidence-based patient safety and medical liability projects and determine the effectiveness of alternative dispute resolution.

For the Patient-Centered Outcomes Research Institute

  • Comparative effectiveness medical research should take into account the role of medical liability laws in driving up health care costs and influencing practice patterns and behavior including defensive medicine. Fear of litigation impacts medical costs. Many more ultrasounds, bio-physical profiles, inductions of labor and operative deliveries are performed due to liability fears. The liability climate should be considered when assessing large variations across the country in prematurity rates and cesarean section rates.

For Private Sector Institutions

  • Hospitals and medical groups with demonstrated capacity to deliver high-quality evidence-based care should receive malpractice relief in exchange for putting in place systems that detect and prevent medical errors, communicate effectively with patients, and pay timely, reasonable compensation for avoidable injuries. This is what is known as the safe harbor approach which strengthens a physician’s ability to use adherence to evidence-based guidelines to defend against a claim that care was negligent.
  • Early mediation, under way in some states and integrated health systems, helps both patients and physicians come to terms with failure and loss and should be encouraged.
  • Offering immediate assistance to injured patients without making them surrender their legal rights, done in Colorado, should be encouraged.
  • Closed claims data from liability insurers across the country should be reviewed with the goal of identifying the areas that clearly need to be addressed in an educational way. This data could be used to modify maintenance of certification and hospital credentialing programs so that there could be a more rapid and direct effect on those areas that need immediate attention.

back to top 

 

Federal Advocacy

This is a national problem which demands a national solution. A majority of states continue to perpetuate a system that is needlessly expensive, inefficient, and often inequitable, while year after year rejecting significant efforts to rectify its flaws. The federal government can break the logjam. A national solution would stabilize the medical liability insurance market, reduce health costs, eliminate physician flight from high-risk states, and protect patients’ access to needed health care. The federal government should also provide adequate funding and other resources to states and health systems to test innovative solutions to a broken liability system as recommended by the Institute of Medicine.

View ACOG's reccomendations to Congress.

 back to top

 

States' Role

To qualify for the federal grants, States are required to develop an alternative liability reform that (1) allows for the resolution of disputes and (2) promotes a reduction in health care errors by encouraging the collection and analysis of patient safety data. In addition, each qualifying State must identify sources and methods for compensation of injuries and demonstrate that its proposed alternative to tort litigation meets certain goals and criteria. States that are awarded grants will be required to submit a report to the Secretary of HHS addressing the impact of their alternative scheme on patient safety and the availably and cost of medical liability insurance.

Across the country, voluntary policy experiments led by hospital systems, liability insurers and state agencies and supported by federal sponsorship are underway. These reforms target both liability cost control and patient-safety improvement.

View ACOG's reccomendations to State Legislatures.

 back to top

 

ACOG Position

Our current tort system is costly, time-consuming, inefficient, and unjust, with widely variable and inconsistent monetary judgments awarded by lay juries to injured patients. It cannot accurately distinguish bad outcomes from genuine negligence and it has the potential to devastate the practice of obstetrics. The system is wholly incompatible with the Institute of Medicine’s vision of the future health care system as “safe, effective, patient-centered, timely, efficient, and equitable.” 

Obstetrician-gynecologists are faced daily with exposure to unmeritorious lawsuits for adverse events over which they had no control and jury awards that exceed $100 million. It takes years to settle and adjudicate cases, delays are onerous, and the administrative costs are enormous. It has been estimated that patients who eventually receive compensation through the current system obtain less than 50% of the amount awarded. The remainder goes largely to the plaintiff’s lawyer and court expenses.

The costs of the current tort system are borne by all obstetric caregivers -- nurses, residents, attending MDs, CNMs, and even medical students -- and the hospitals where they work, through the escalation of medical liability premiums. This contributes to a reduction in obstetric care by those currently practicing and in the number of American medical school graduates choosing to enter obstetric residency programs. As a consequence, the quality of care that will be available to future generations of women in this country is threatened.

Meaningful reform of our broken liability system, in addition to reducing and stabilizing malpractice premiums, must make medical care safer and improve the process of dealing with errors.

 back to top

Contact:

Government Affairs Staff 
Mailing Address:
PO Box 96920
Washington, DC 20090-6920
Phone (202) 863-2509
Fax (202) 488-3985
govtrel@acog.org