NEJM: Medical liability reform hits congressional radar

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While the U.S. healthcare reform debate battles on, one issue emerging at the forefront is whether a reform package should include medical liability system reform--an oft-cited whipping boy for rising healthcare costs, according to a perspective published online June 15 in the New England Journal of Medicine.

The perspective's authors, Michelle M. Mello, JD, PhD, from the department of Health Policy and Management at Harvard School of Public Health in Boston, and Troyen A. Brennan, MD, JD, from CVS Caremark in Woonsocket, R.I., wrote that in the past two congressional sessions, medical liability "garnered relatively little attention." However, the tide is turning now that the Democrats have gained the majority in both the House and the Senate, and the question is whether healthcare reform changes the political calculations surrounding liability reform.

Healthcare reformers might consider bundling medical liability reform with the overall healthcare reform package because the costs associated with malpractice liability are difficult to estimate, and analysts disagree about the magnitude of their contribution to overall health expenditures, according to the authors. Yet, trimming even 1 percent of total healthcare spending would save around $22 billion annually.

Also, healthcare reformers understand that they will have to garner physician support for an omnibus bill that will no doubt create a more stringent financial environment for healthcare providers. According to Mello and Brennan, they can gain approval for expansions of public insurance programs through malpractice reform. Bundling tort and healthcare reform also may help to attract support from congressional Republicans for a healthcare reform package, the authors noted.

One approach to malpractice reform calls for state experimentation with programs adopted by liability insurers, sometimes called disclosure-and-offer programs, in which providers disclose unanticipated outcomes of care to patients and make compensation offers in appropriate cases. Patients do not waive their right to sue by accepting the offer, but reportedly, few go onto file lawsuits.

The second approach is to shift the adjudication of medical malpractice claims to either an administrative panel that would award damages on the basis of judgments by neutral experts about the avoidability of the injury or specialized judicial courts presided over by judges with medical expertise. A third approach would be to create a federal "safe harbor," retaining the current process of adjudication but insulating physicians from liability if they adhered to evidence-based medical practices.

Since safe harbors and special tribunals led by medical experts would give physicians a legal incentive to practice evidence-based medicine, liability reform could be an effective way to foster the uptake of comparative-effectiveness research (CER) findings.

"As politically difficult as tort reform can be, it is probably more tractable than limiting coverage or reimbursement to the most cost-effective treatments--or even to the most clinically effective therapies. In addition, physicians and hospitals will complain, with reason, if they practice in accordance with CER findings yet are found liable for malpractice," the authors wrote.

All three reform approaches are not mutually exclusive and indeed could complement one another but medical malpractice law has traditionally been controlled by the states complicates attempts to impose a federal structure on it. However, Congress could either declare its intent to completely preempt state regulation of the field or condition states' receipt of federal health funds or "bonus payments" on their willingness to adopt changes to their tort systems.

"At present, few policymakers are openly discussing the pros and cons of bundling liability reform and health care reform. The overture to the exquisite oratorio of lawmaking calls for each player to press the key positions its constituents demand. But within a few months, we predict that many will be looking for compromises," Mello and Brennan concluded. "If liability reform proves to be an enticing sweetener for a healthcare reform compromise, it could become part of the package."