We’re lost, but we’re making good time.
-Yogi Berra
As Yogi Berra alludes, it is very easy to get caught up “in the flow” and continue to move along at a good pace, even when one does not know where he or she is ultimately headed. Similarly, in terms of medical malpractice, everyone seems to have an opinion on what should be done to improve the climate of medical malpractice for both providers and patients. Yet, there are many differences in opinions on how to solve these issues, and the “cure” for what “ails” in the system are many—with an undetermined endpoint.
Tort reform is often conjured as the communal fix; yet each state in the Union has its own medical malpractice tort laws, which begs the question of how an issue with so many different facets can be resolved. Additionally, the risk alone of medical malpractice continues to be an important area of concern to emergency physicians (EPs), not only because of the looming threat of malpractice litigation—both real and perceived—but also because of its influence on practice patterns, resource utilization, and patient care in the ED.1,2
Physician Perception
Over the course of a career, an EP faces at least one claim, further perpetuating a common physician perception that the occurrence of a suit is not a condition of “if” but rather of “when.”3 This anxiety and fear among physicians in general are further provoked by the many headlines highlighting massive jury verdicts that dominate the news cycle.4
In addition, the EP’s work and practice are increasingly affected by the impositions of multiple nationally reported quality metrics, institutional throughput goals, and process-improvement efforts. Each of these in turn has the effect of increasing the pace of care and can challenge one’s real-time ability to recognize the dangers of inherent biases, to appreciate and act upon subtle clinical clues, and to rescue patient-experience misadventures. Accordingly, medical malpractice is a frequent topic of discussion for policy proposals among physicians and legislators.
Defensive Medicine and Tort Reform
As spending on health care in the United States topped $3 trillion, or 17.5% of the US gross domestic product in 2014, strategies for cost-containment have become a primary concern across all sectors of the health-care industry.5,6 With defensive medicine proposed by some as a substantial driver of health-care costs, many physicians have focused on tort reform as an avenue to curb defensive testing. This has resulted in substantial policy shifts in a number of jurisdictions.7,8 Some of the policy changes that have taken place over the past few decades have included state-imposed caps on medical malpractice awards and noneconomic damages, caps on attorney fees, and shortened statutes of limitations that require more timely filing of malpractice suits.
Defining Malpractice and Imposing Caps
In 2003, Texas changed its definition of the medical malpractice standard to “willful and wanton negligence”; in Georgia (2005) and South Carolina (2005) the definition was changed to “gross negligence.” Both of these revised definitions are essentially synonymous in a legal sense and are intended to protect physicians working in a high-risk, limited-information, high-intensity environment (eg, the ED) by raising the plaintiff’s responsibility to prove that the defendant physician was aware of the likelihood of serious injury but proceeded with “conscious indifference.”9
It seems, however, that such efforts have been not been entirely effective in reigning in costs of care, decreasing insurance costs, and limiting defensive medicine, particularly in the ED.9 A study by Paik et al10 on the effect of caps on malpractice claims and payouts found that in states with caps, both claims and payouts were effectively reduced, with a large impact on payout per physician and a drop in claims for those cases with larger payouts. While stricter caps had larger effects, the authors did not examine the impact of caps on “defensive medicine.”10 Furthermore, many physicians, health systems, and patient advocacy groups have been exploring and implementing alternative models of claim resolution outside of the legal process.11
Alternative Compensation Models
In the state legislatures of Georgia and Florida, alternative patient-compensation models are currently under proposal. Both models are designed to eliminate the current medical tort system and replace it with an administrative system to compensate patients for medical errors that have caused them harm.12 These proposals are similar to the existing Birth-Related Neurological Injury Compensation Programs (BRNICP) in effect in both Florida and Virginia. The BRNICP in each of these states serves as an administrative system to provide monetary compensation to patients who have clearly suffered only birth-related medical injuries, thus keeping this type of liability out of the court system.