Author + information
- Hadley Wilson, MD, FACC, Chair, ACC’s Board of Governors∗ (, )
- Joseph S. Wilson Jr., MD, FACC, Chair and CEO, MagMutual Insurance Company, Former ACC Georgia Chapter Governor and
- Frank Ryan, ACC Director of State Government Affairs
- ↵∗Address for correspondence:
Dr. Hadley Wilson, American College of Cardiology, 2400 N Street NW, Washington, DC 20037.
Tort reform is among the few issues that elicit truly visceral reactions from physicians, including cardiologists. The topic, which has long been a priority issue for the American College of Cardiology and its members, recently resurfaced in earnest in listserv conversations among the College’s Board of Governors members. Who knows if there is a stronger thread of unrest now as the result of surprising political outcomes in the United States and abroad (i.e., “Brexit,” the 2016 U.S. presidential election, and, more recently, the presidential election in France), or if there is just a greater collective passion to confront the establishment. Regardless, there appears to be an opening for tort reform discussions that has not existed for many years.
At the broadest level, cardiologists are at a higher risk of facing a medical malpractice suit at some point in their professional career due to allegations of improper performance, errors in diagnosis, medication errors, or failure to recognize a complication. Cardiovascular surgeons and neurosurgeons are at the highest risk, with pediatricians at the lowest risk. Unfortunately, the current system of handling these claims and determining medical professional liability (MPL) is seriously flawed. Most claims take an average of 4 years or more to be resolved (1).
For patients with valid claims and who are seeking compensation to help with medical bills, a 4-year wait means spending substantial sums of their award/settlement money to pay attorney fees and other litigation expenses, thereby depriving them of the funds intended for their recovery. For the more than 75% of health care clinicians who are found not to be negligent, 4 years is a long time to wait to be cleared of any wrong doing. It can be difficult to recover from the effects of costly legal fees and reputation damage (2).
Although meaningful tort reform at the federal level has been viewed for the last several decades as a long shot, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act could push the country toward a solution. Supported by the American Medical Association, the American Hospital Association, and the American Health Care Association, the HEALTH Act is based on reforms enacted in California more than 30 years ago. It aims to ensure that patients and health care providers have access to an MPL system that resolves claims fairly and efficiently; preserves a victim’s access to unlimited compensation for economic losses; and protects health care providers against lengthy, unmeritorious litigation (3).
Specifically, the act would limit losses covered by Medicare, Medicaid, and private health insurance supporting Affordable Care Act plans, with the goal of reducing the number of unwarranted or “defensive” diagnostic tests ordered by physicians concerned about potential malpractice claims. The legislation has an initial $250,000 cap on noneconomic damages that includes compensation for pain and suffering. However, the bill would allow states to keep different limits (3). According to the Congressional Budget Office, the HEALTH Act could save the federal government $45 billion over the next 10 years. Although passage of the HEALTH Act in a divided Congress remains a question, the fact that we are having discussions of tort reform at a national level is progress.
In the meantime, the purview of tort reform is still one of the last bastions of states’ rights. MPL laws are prolific throughout the United States, yet most laws are unique to a specific state. Today, some individuals live in states with MPL reforms that truly improve patient/health care provider communications, stabilize the MPL market, and protect access to health care services, whereas others are stuck with broken systems that do little to protect patients or providers.
California, Colorado, Kansas, and Texas are among the states with the best MPL laws, largely because they implemented caps of $250,000 to $300,000 on noneconomic damages that have subsequently resulted in dramatic reductions in lawsuits and insurance premiums. Indiana, Alaska, North Carolina, North Dakota, and South Dakota are not far behind, with caps in the $500,000 to $1,000,000 range. On the other side of the spectrum, Illinois, New York, the District of Columbia, Pennsylvania, New Jersey, and Delaware have some of the worst MPL protections. With no caps on noneconomic damages, litigation is frequent, malpractice handouts are high, and tort reform has been weak (4,5).
Other state reforms in process vary widely and pay attention to patient access issues and patient safety, as well as saving unnecessary costs of defensive medicine. In Alaska and Wisconsin, laws passed in 2015 would provide legal protections for apologies or expressions of sympathy. Also in Alaska, a new law gives out-of-state licensed medical providers immunity from lawsuits. A similar bill passed in Colorado provides immunity for volunteers serving in emergency situations. Both Louisiana and Kansas have passed laws that use the Daubert standard for expert witnesses. Additionally, the Kansas law also raised the noneconomic cap. In Kentucky, a 2015 bill created a medical review panel to determine if a claim is valid for trial, while in Oklahoma and Tennessee, legislation outlined standard of care protections and regulated lawsuit lending, respectively (Table 1).
In addition to these bills, a small but well-funded contingent seeks to replace the current civil litigation system with a no-fault workers’ compensation-based model that deploys state government agencies and “expert” panels to assess injuries and payouts where necessary. Although the physician community strongly supports reform, this idea has not become law in any state due to concerns over potential negative effects on health care providers and taxpayers. The costs of these proposals are often very high, and promises to physicians that they would no longer need legal representation or malpractice insurance seem too good to be true.
In summary, medical tort reform is a vast chasm of multivariate legislation with profound inertia. Two issues we wish we could change about our system include:
1. A cap should exist on noneconomic damages such as what exists in both Texas and California. Damages for negligence should align with the cost associated with subsequent medical care and any lost wages. Noneconomic funding of the plaintiff and the plaintiff's attorney is not based on objective data; rather, it is based on the sentiment of the presiding jury. Putting a cap on sentiment is appropriate. Large $40 and $50 million settlements should not occur.
2. There should be a limit on plaintiff attorney’s fees. Establishing limits would allow a more equitable distribution of funds to the appropriate person, the injured party, and appropriately compensate the attorney for work done. Unlimited plaintiff's attorney fees as a percentage of the total award creates a coplaintiff situation, and the plaintiffs’ attorneys sometimes operate around how much money they stand to make on the case and less about justice for the injured plaintiff.
There are many more legal remedies for states where the system is not balanced in aligning the rights of the defendant and the rights of the plaintiff in the civil actions. Imbalances exist primarily because state legislatures are so heavily staffed and controlled by the plaintiff bar. States including California and Texas have seen physicians and local chambers of commerce work together and create a more balanced perspective between both parties to the claim. Unfortunately, it is not that way in many states.
Finding ways to come together at the state or federal level is critical if we want to protect patients and providers alike. The current health care environment is such that tort reform is not necessarily out of the realm of possibility. Continuing the tort reform dialogue is essential. There is real value in conscientious physicians re-examining the state of tort reform to see if there are commonalities from which we can all learn, fight or join.
- 2017 American College of Cardiology Foundation
- ↵Allegations based on MagMutual claims data, 2010–2014, top 4 allegations. MagMutual claims data, suits, claims and notices of intent against cardiologists, inception through 12/31/2015. Based on percentage of claims closed without payment to the plaintiff. https://www.magmutual.com/
- ↵Pear R. G.O.P. bill would make medical malpractice suits harder to win. The New York Times. Available at: https://www.nytimes.com/2017/04/15/us/politics/republicans-health-care-bill-medical-malpractice-suits.html?smprod=nytcore-iphone&smid=nytcore-iphone-share. Accessed May 31, 2017.
- ↵Kiernan JS. 2017’s best & worst states for doctors. WalletHub. Available at: https://wallethub.com/edu/best-and-worst-states-for-doctors/11376/. Accessed May 31, 2017.
- ↵Roslund G. The medical malpractice rundown: a state-by-state report card. Emergency Physicians Monthly. Available at: http://epmonthly.com/article/the-medical-malpractice-rundown-a-state-by-state-report-card/. Accessed May 31, 2017.