Medical malpractice and liability

Medical Malpractice and Liability

The objective of this work is to examine medical malpractice and liability. This work will discuss the importance of this issue and will suggest a method of elimination of the problem concerning medical malpractice and liability from the health policy view.

Medical malpractice and liability has resulted in a great deluge of lawsuits in the courts of the United States and while it is necessary that these reprises exist for the purpose of ensuring the quality of delivered healthcare services, simultaneously, medical malpractice and liability concerns also result in the hesitation of medical professionals to try new or alternative treatments which might well be more effective and less costly and drives the expanding costs of insurance to cover medical professionals in the event there is some medical malpractice or liability incurred during the course of the medical practice which effectively drives up the cost of medical services for the consumer.

LITERATURE REVIEW

The Congressional Budget Office work entitled: "Limiting Tort Liability for Medical Malpractice" states that there has been "a sharp increase in premiums for medical malpractice liability insurance, which health care professionals buy to protect themselves from the costs of being sued." (2004) This CBO Economic and Budget Issue Brief additionally states: "The available evidence suggests that premiums have risen both because insurance companies have faced increased costs to pay claims (from growth in malpractice awards) and because of reduced income from their investments and short-term factors in the insurance market. Some observers fear that rising malpractice premiums will cause physicians to stop practicing medicine, thus reducing the availability of health care in some parts of the country." (2004)

It is also related by the Congressional Budget Office that evidence exists indicated by the states that premiums for malpractice insurance "...are lower when tort liability is restricted than they would be otherwise." (2004) However, it is the conclusion of the CBO that large premiums savings "...can have only a small direct impact on health care spending -- private or governmental -- because malpractice costs account for less than 2% of that spending." (2004) the following chart illustrates the stated Trends in Premiums for Physician's Medical Malpractice Insurance, by Type of Physician, 1993 to 2002" adapted from the CBO 2004 Economic and Budget Issue Brief.

Trends in Premiums for Physician's Medical Malpractice Insurance, by Type of Physician, 1993 to 2002

Source: Congressional Budget Office (2004) Economic and Budget Issue Brief

It was reported in the CRS Report for Congress written by Cohen (2005) entitled: "Medical Malpractice Liability Reform: Legal Issues and Fifty-State Survey of Caps on Punitive Damages and Noneconomic Damages" (2005) that "Medical malpractice liability is governed by state law, but Congress has the power, under the Commerce Clause of the U.S. Constitution (Art. I, 8, cl. 3), to regulate it. In the 108th Congress, the House passed virtually identical bills (H.R. 5 and H.R. 4280) that would have preempted state law with respect to certain aspects of medical malpractice lawsuits, and it seems likely that the 109th Congress will also consider medical malpractice reform proposals." (Cohen, 2005)

It is additionally stated that those who support reform of medical malpractice liability state the argument that "...current state tort law provides a costly and inefficient mechanism for resolving claims of health care liability and compensating injured patients high liability insurance premiums diminish consumers' access to health care and raise health care costs. Physicians and their insurers claim that frivolous malpractice lawsuits and unreasonably large jury awards are responsible for the problem. They typically support tort reform legislation that would limit the amount juries may award to plaintiffs in malpractice cases." (Cohen, 2005)

Those who are opposed to such reforms pose the argument that "... "there is a very minimal relationship between health care costs and malpractice litigation," and that, "[a]s the Harvard Medical Practice Study reported in 1990,... about one in eight negligently injured patients file a malpractice claim. The study's authors concluded that the problem is not too many claims, but, if anything, too few claims. (Nace, 1993)

Finally, it is the position of the lawyers and the consumer groups that to blame is "the insurance industry... For the rapid rise in malpractice insurance premiums." (CRS Report, 2005) it is the contention of these groups that "...bad investment choices, in addition to the underwriting cycle, have led to dwindling profits for insurers, who then try to recoup their losses through over-priced insurance products. Lawyers and consumer groups generally support efforts to reform the insurance industry in order to rein in premiums." (Cohen, 2005)

The work of Miller (2003) entitled: "Liability for Medical Malpractice: Issues and Evidence" states that over the past "...several years" witnessed has been an increase of a considerable nature in both the cost and the impact of "medical malpractice litigation." Miller states specifically that "...between 1994 and 2001, the typical medical malpractice award increased 176% to $1 million. The result has been higher malpractice insurance premiums for health care providers, which in turn has led to higher costs for the health care system as well as reduced access to medical services. In 2001, total premiums for medical malpractice insurance topped $21 billion, more than double the amount ten years earlier." (2003)

It is the belief of Miller (2003) that medical malpractice and liability reform would "...significant benefits, including significant savings on health care spending from a reduction in unnecessary tests and treatments motivated out of fear of litigation. Reform would also encourage systematic reform efforts to identify and reduce medical errors, halt the exodus of doctors from high-litigation states and specialties, and improve access to health care." (Miller, 2003)

The work of Berenson, Kuo and May (2003) entitled: "Medical Malpractice Liability Crisis Meets Markets: Stress in Unexpected Places" states that the "...causes of rapidly rising medical malpractice insurance premiums remain contentious and unsettled, the consequences are rippling through communities, threatening to diminish patients' access to care and increase health care costs, with an uncertain impact on quality, according to findings from the Center for Studying Health System Change's (HSC) 2002-03 site visits to 12 nationally representative communities. The severity of malpractice insurance problems varied across communities, with some physicians changing how and where they care for patients." Berenson, Kuo and May (2003 additionally state that other emerging responses of physicians identified in their study to concerns relating to malpractice insurance included "...referring more patients to emergency departments, safety net hospitals and academic health centers; refusing to provide on-call emergency department coverage; and declining elective referrals from safety net providers.