Medical malpractice directly influences access to health care as well as the quality of health care provided by managed care organizations. By reforming malpractice laws and limiting cases to those that are only "wanton and willful" criminal acts, overall access to health care will increase. Some variables associated with malpractice are: the escalating costs of health care, the practice of defensive medicine, and the geographical distribution of health care providers across the country. Malpractice lawsuits have contributed to the current psychology our health care system has today. Many lawsuits have been fair and have clearly improved medical practice in terms of safety. However, defining medical negligence in such broad terms, as they currently are, increases the profitability of lawsuits and encourages more of them. This drives up the costs of and defensive medicine, which in turn creates access disparities that affect the greater good of the population. Therefore, we need to consider medical malpractice and tort law reform.
Terminology
*Tort Law - civil wrongs resulting in an injury or harm constituting the basis for a claim or lawsuit by the injured party
*Reform - to amend or improve by change of form or removal of faults or abuses
*Medical malpractice - aims to protect the health care provider and patient in the event of negligence or unintentional injury.
*Negligence - failure to use reasonable care either by purposeful act or omission by a clinician and must demonstrate the practitioner deviated from accepted standards of medical practice
*Defensive medicine - the practice of prescribing unnecessary medical procedures, tests, or treatments to avert the future possibility of malpractice suits
*Access to care - the ability to "obtain needed, affordable, convenient, acceptable, and effective personal health services in a timely manner"
*Standard of care - a diagnostic and treatment process the clinician should follow for certain types of patients, illnesses, or clinical circumstances
*Patient safety - the freedom from accidental injury due to medical care or error
Medical malpractice has recently been deemed a crisis due to the spikes in malpractice premiums which have caused a problem with access to care. Budetti and Waters (2005) states, "some believe the tort system is at fault, blaming excessive litigation, unreasonably high settlements and judgments, and the encouragement of defense medical practices; others blame the medical insurance market" (p.1).
Researchers at Harvard University and the Brigham Women's Hospital in Boston assert that defensive medicine fails to prevent medical errors, unavoidable patient injury, and that a correlation exists between defensive medicine practice and medical malpractice premiums. Therefore, the researchers have stated applicability of this defensive practice should be halted to reduce costs on the already burdened health care system (Mellow, Chandra, Gawande & Studdert, 2008). The aftermath of these actions to malpractice pressures have contributed to access and cost of health care problems in certain regions of the country. Disparities in health care access are often due to high geographical premium rates, which often dissuade clinicians from desiring to practice in these high-risk, high-cost locations.
According to the Congressional Budget Office, from 2000 to 2002, premium rates for certain medical specialties increased by 15 percent nationally and over 100 percent in certain states (CBO, 2004). Since the malpractice law is regulated under the state level there is a great geographic variation in the premium growth rate among states. In response to these rising liability premiums many physicians have moved out of these high cost states or halted higher-risk services (such as labor and delivery) ultimately leading to a limitation in consumers' access to health care in certain areas (CBO, 2004).
According to the American Nurses Association (2007) the intent of malpractice is good although rising premiums are not ideal because they have contributed to a threat in patient access and provider availability. The association states multiple factors such as failing to adequately prevent medical errors, short staffing, need for reform among insurance industries, and standards of practice, and statute of limitations deficits have contributed to an increase in malpractice premiums. As a result the issue of medical malpractice/tort reform has "generated increased attention and concerns from the health care, legal, and insurance communities as well as from state and nationally policy makers, consumers, and the media" (p.1).
Conversely, Tom Baker, Professor of Law and Health Sciences, at the University of Pennsylvania states regulating medical malpractice premiums does not accomplish the goal of bringing costs down, access to care, or defensive medicine practices. He states, "The real problem is too much medical malpractice, not too much litigation." He states the malpractice premiums are a result of financial trends not "sudden changes in the litigation environment." He defends his position by citing a decline in defensive medicine practices from 5 to 7 percent in 1996 to 2.5 to 3.5 percent a few years later indicating a cyclical trend (University of Chicago, 2005).
According to the Congressional Budget Office, in 2008, the medical liability system cost an estimated $55.6 billion or 2.4 percent of total health care spending. An estimated $45.6 billion of the total is the result of defensive medicine costs (Mellow, Chandra, Gawande & Studdert, 2008). The current law permits individuals to pursue civil claims against health care providers for breaches of duty which result in personal injury. This has had implications on access to care and high-risk but much needed health services. Tort law reform aims to change the medical malpractice standards in various ways some broad while others are more specific (Elmendorf, 2009). A multi-faceted approach via the establishment of specialized court, standardizing malpractice insurance, and changing the statute of limitations are three specific ways to improve the current system.
By decreasing the number of malpractice lawsuits, insurance companies will no longer need to take on as much financial risk. This means less money going into legal protection, medical lawsuits, and defensive medicine. Decreasing these expenditures will, in turn, drive the cost of access to healthcare downward. If healthcare organizations can provide access to a greater number of patients, it is likely that the health status of our country will improve.
Furthermore, unified malpractice insurance cost rates do not currently exist across different geographic locations. This discourages providing health care in areas where malpractice insurance simply is not affordable to healthcare organizations. By driving down the cost of practice, healthcare organizations would be able to have increased distribution of care geographically.
Malpractice serves the purpose to protect patients from acts of negligence, regardless of whether they are purposeful or not. Limiting a patient's ability to pursue financial recourse appears to be less fair to the patient. Because patients would have a much harder time proving negligence occurred based on criminal intention. But, we need to consider they are still protected in the "willful and wanton" clause. We need to consider the $55.6 billion we spend on medical liability annually, and think about how we could allocate the majority of that into providing healthcare to the people who cannot afford it.
Medical malpractice places stress on clinicians to work against each other as they compete for patient numbers. Gone are the days of doctors focusing in on patient care, but instead on money as they see how many patients they can see in one day. Advances in medical technology, equipment and new disease recognition allow doctors to further diagnose and treat their patient, however also requires the expertise of more and more people. The possibility must be examined of more doctor and nurse education and credentials, allowing them to be more involved in the patient's care and treatment course. Although it is important to conserve time and costs, while using the teamwork of the entire health care team, it is possible less risk of liability could occur when less people are involved.
Insurance companies also play a role in liability prevention of doctors and hospitals. According to the Medical-Legal Corporation, "hospitals want to shorten lengths of stay because they receive a lump sum for a patient's entire admission, but doctors are paid for each visit on each hospital day, so the sooner patients go home, the less they make. Under most insurance plans, neither is rewarded for doing the extra work that might prevent a readmission to the hospital (Lee, p. 54)." In our opinion, more money should be awarded to doctors and other medical professionals when patients have been thoroughly taken care of to reduce the likelihood of hospital re-admissions. Doctors would be able to focus more on the care of the patient and measures to improve or maintain their current health situation and decrease the amount of unnecessary medical cases filed. Over time, more patients would be receiving better care and less money would need to be spent on high malpractice insurance rates.
Another area of concern is cultural and language barriers. As we are seeing an influx of foreign doctors entering into the practice of medicine in the United States, as well as immigrants coming to live in the United States, valuable medical information can be miscommunicated. A common language needs to be established and some sort of service provided for patients and doctors to effectively communicate. Doctors must present information to patients in a way that is clear and understandable, allowing an adequate amount of time for questions and clarification. Access to language interpreters and translators could also prove beneficial.
In one case example in the New England Journal of Medicine, "the misinterpretation of a single word led to a patient's delayed care and preventable quadriplegia. A Spanish-speaking 18-year-old had stumbled into his girlfriend's home, told her he was "intoxicado," and collapsed. When the girlfriend and her mother repeated the term, the non-Spanish-speaking paramedics took it to mean "intoxicated"; the intended meaning was "nauseated." After more than 36 hours in the hospital being worked up for a drug overdose, the comatose patient was reevaluated and given a diagnosis of intracerebellar hematoma with brain-stem compression and a subdural hematoma secondary to a ruptured artery. The hospital ended up paying a $71 million malpractice settlement (Flores, 2006)." In this case, a language barrier was the culprit for a $71 million dollar case. If we decrease the incidence of language barriers, we decrease the likelihood of a medical malpractice claim or incident to occur. More cases of medical malpractice may be thrown out and overtime, only taken to an actual court of law if an immediate threat to life occurred to the patient.
Recommendations
As it stands, many physicians are unable to afford the it takes to practice and provide medical services. At the same time, many Americans are forced to pay higher insurance premiums due to the rising malpractice costs for doctors, thus affecting the quality of health care in which they receive. With the elimination of most medical malpractice suits, more Americans can have better, more affordable and accessible health care. Defensive medicine is being practiced by some doctors as a way to avoid liability instead of practicing with the best interest of the patient in mind. In practicing this way they are actually raising health care costs.
A study conducted by Hyman & Silver (1999) found that, "reduced malpractice premiums for OB/GYNs were related to a statistically significant by small decrease in the rate of cesarean sections performed for some groups of mothers, a procedure researchers believe to be influenced by physicians' concerns about malpractice liability (p. 26)." We recommend therefore that a cap be placed by policy-makers on malpractice insurance that is affordable and stable. In doing so, doctors and nurses will be able to practice with the best interest of the patient at heart. Furthermore, in a study of pediatricians, 80% ordered more tests than they believed were necessary out of fear of litigation (Hennesey, 2)." Labs and other testing will be ordered on a basis of importance for the overall well-being of the patient, instead of the doctor "covering all areas," so to speak, to avoid any form of legality.
A second recommendation is for stipulations to be in place for filing a medical claim. Most claims are filed, but later dropped. Claims are primarily filed in order to gain more information about whether medical negligence has actually occurred. Drop rates occur when the "expected value of award is less than the costs of pursuing more information and litigation (Hennesey, 1)." Interestingly enough, research shows that most Americans who are injured rarely take their claims to court. "Of every one hundred Americans injured in an accident, only ten make a liability claim, and only two file a lawsuit (GAO report, 1089)." With that in mind, we must take into account the "business" aspect of medical malpractice. Lawyers know the financial value of a medical error, and do their absolute best to inform the public in order to make money with numerous cases. If the process of filing claims, based on the charge of medical malpractice were more difficult, we believe more cases would never be opened. Lawyers should be required to meet certain criteria with a case before it is brought to court, and a cap should be placed by policy makers on money awarded from medical malpractice cases to both the legal team and patient. We could potentially see a decrease in cases, due to financial caps, thus decreasing the malpractice cases and costs.
A third recommendation is for a medical court system to be in place within our legal system. In doing so, tighter restrictions and more knowledge about the medical system can be maintained within the medical field. Instead of having Registered Nurses being hired on by legal firms, acting as legal nurse consultants, and the litigation process can be run by those in the medical field instead of reliance on their hired legal opinion. Medical specialization, healthcare education and clinical expertise will be the basis of the courtroom, helping to sort the cases of importance and legitimacy, thus dissuading the amount of cases opened. More health care professionals won't be in such fear of medical liability so often, thus allowing them to work with their patients, instead of against them.
In conclusion, we found medical malpractice and tort law reform has the potential to improve quality of care and access to care. This would greatly reduce health care disparities and the economic burden defensive medicine practices have placed on our current health care delivery system. However, we need to realize this would be a very difficult task to implement because of the many parties invested such as law, medicine, patient, patient advocacy groups, and politics. Therefore, we contend small changes should be implemented first such as altering the criteria of negligence practitioners must meet and to reduce malpractice insurance premiums.
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