Medical Tort System

The medical tort system serves both as a compensation mechanism as well as a potential deterrent to medical injury. Clinicians are expected to be more likely to change their behavior if the odds of getting caught increase and/or the financial consequences of negligence increase. States historically have been responsible for establishing and enforcing rules governing tort liability in medical care and other settings. A number of states have adopted major reforms such as caps on non-economic damages or caps on attorneys’ fees. The focus in this section is on measuring the overall cost of the current “system” rather than measure the potential gains from reforming it. In the current system, both facilities and health professionals may be involved in decisions to purchase professional liability insurance. Since it is up to individual patients to decide whether to sue in a given case, not surprisingly a relatively high fraction (98%) of actual victims of negligence opt not to sue. Conversely, less than one in five malpractice claims appear to involve actual negligence (Studdert et al. 2004). The Duke Center for Health Policy has developed a draft working paper assessing the costs and benefits of the medical tort system.

Links

Background

• Economics of Medical Malpractice (2009). Course syllabus for Frank Sloan, Duke University.
• Government Accounting Office (GAO). 2003. Medical Malpractice: Implications of Rising Premiums on Access to Health Care, GAO-03-836.
• Health Care Liability Alliance, a site including trends in lawsuits, lawsuits and higher health costs, junk science in courtroom, health care product liability and other background information.
• National Patient Safety Foundation

Federal Medical Tort Reform

• Congressional Budget Office (CBO). 2004. Economic and Budget Issue Brief: Limiting Tort Liability for Medical Malpractice, January 8, 2004.

State Medical Tort Reform

• Encinosa, William E., and Fred J. Hellinger. Have State Caps On Malpractice Awards Increased The Supply Of Physicians? Health Affairs Web Exclusive, May 31, 2005, W5-250-258.
• Hunter, J. Robert, Gillian Cassell-Stiga, and Joanne Doroshow. True Risk: Medical Liability, Malpractice Insurance and Health Care. New York: Americans for Insurance Reform, July 22, 2009.
• Mello, Michelle M. 2006. Medical Malpractice: Impact of the Crisis and Effect of State Tort Reforms.
• National Conference of State Legislatures (NCSL). 2007. State Medical Liability Laws 2007.
• Physician Insurers Association of America (PIAA). 2009. State Enactments of Selected Health Care Liability Reforms.
• Thorpe, Kenneth E. 2004. The Medical Malpractice ‘Crisis’: Recent Trends and the Impact of State Tort Reforms. Health
  Affairs Web Exclusive 23 (January – June): 20-30.
• Weiss, Martin D., Melissa Gannon, and Stephanie Eakins. 2003. The Impact of Non-Economic Damage Caps on Physician Premiums, Claims Payout Levels, and Availability of Coverage.

Private Initiatives

• Health Group Names 16,638 Questionable Doctors (Public Citizen)