The threat of medical liability litigation hovers over physicians like a cloud and imposes rising costs on the nation’s health system.
More than one in three physicians, 34 percent, have had a medical liability lawsuit filed against them at some point in their careers, according to the American Medical Association’s Division of Economic and Health Policy Research. The longer physicians are in practice, the likelier it is that they will have experienced a lawsuit.
Preserving quality and access in medicine, while reducing cost, requires fairness in the civil justice system. Every dollar spent on the broken medical liability system is a dollar that cannot be used to improve patient care.
H.1412, An Act Relative to Patient Care Access, would implement the following provisions to ensure full access to care for patients, reduce costs, and ensure a fair and transparent process for resolving medical liability claims:
Section 1. This provision would grant the Board of Registration in Medicine the authority to review the testimony of a physician serving as a witness in a trial relative to medical malpractice in the event that it is alleged that the physician gave false or incompetent testimony relative to a medical service or procedure. Currently, the Board does not have any authority to review the physician conduct as it relates to medical competency. This legislation would grant the Board the authority to review the testimony from a clinical perspective as to the standard of medical care.
Section 2 This provision would require professional liability insurers and risk management organizations that provide coverage to annually report to the Betsey Lehman Center for Patient Safety and Medical Error Prevention the top ten categories of losses, claims or actions for damage for personal injuries and top defendant specialties as to cost and frequency of cases in the prior year. The Center shall use this information n the development of evidence-based best practices to reduce medical errors and enhance patient safety. The Center will also use this information to increase awareness or error prevention strategies through public and professional education.
Section 3 This provision would enhance existing provisions allowing for the introduction into evidence of collateral sources that pay to the plaintiff as a result of the malpractice, negligence, error, omission, mistake or the unauthorized rendering of services. Current law allows for introduction of evidence of collateral sources that replaced, compensated or indemnified any cost or expense related to medical care,
custodial care or rehabilitation services, loss of earnings or other economic loss. This provision would allow future sources to be included as evidence of collateral sources.
Section 4 This provision sets the rate that can be charged on prejudgment interest on damages for the plaintiff at a rate of the average accepted auction price for the last auction of the fifty two week US treasury bills settled immediately prior to the date on which the verdict was rendered or the finding or order made.
Section 5 This section adds the following three new sections to Chapter 231:
- Section 60M. This provision would require that an expert witness in an action against a physician be board certified in the same specialty as the defendant physician. Currently all that is required is a determination that the expert is fair and impartial.
- Section 60N This provision allows the payment of future damage in periodic payments to be determined by the court where the total damages awarded equals or exceeds $50,000. Currently the award can be directed to be a lump sum. Allowing periodic payments allows for the purchase of annuities that lower the overall cost to the system.
- Section 60O. This provision would establish the rule that a defendant in a medical malpractice case shall be liable only for the amount of damages allocated to that defendant in direct proportion to his or her percentage of fault. Thus, it would require that a separate judgment should be rendered against each defendant for the specific amount of his or her liability. This would change the current system of “joint and several” liability.
Under the present system, all defendants are equally liable to pay for the entire judgment. Thus, if multiple health care providers – hospitals, physicians and other clinicians – are found to be in any degree culpable, each is equally at risk financially.
The MMS urges the Judiciary Committee to report H.1412 out of Committee favorably.
