Is There Any Hope for Malpractice Reform?

Anne L. Finger, MA


July 17, 2014

In This Article

There Are Rays of Hope

Medical malpractice continues to loom large in the minds of just about every practicing physician. Claims and rates are declining, but the problem of lawsuits against physicians is far from tapering off. And upcoming changes in medicine due to doctor/hospital consolidations and uncertainty about the impact of the Affordable Care Act may bring more developments.

Michael Matray, Editor of Medical Liability Monitor, says, "The situation has definitely improved in the past five years," in part because of the emphasis on risk management, with physicians receiving credits for attending seminars and advice from risk managers in their offices on how to do better. "Supporters of tort reform have been very successful over the past couple of years," he adds, and it's now very difficult to bring a claim to trial.

"It's expensive for plaintiff attorneys; they have to invest a lot and may not be able to make a profit," he says. Although claims are at a historic low and claims frequency is down, he says, malpractice insurance is still a "giant investment in the physician's work life. It would be wrong to ask doctors, 'Why are you complaining?'"

But to defense attorney Michael Sacopulos of Sacopulos, Johnson & Sacopulos in Terre Haute, Indiana, the situation seems much the same as it did five years ago. "Some say there are fewer claims being filed, but I don't see that."

He finds claims of the same value and nature as in the past, with one exception: "I have seen an effort to bypass med-mal rules and regulations, for example, through product liability cases involving hardware installation -- putting the doctor into the chain of responsible parties. The plaintiff bar positions a claim to avoid the damage caps."

Brian Atchinson, CEO of PIAA (Physician Insurers Association of America), says, "Things have been relatively stable for a few years, but there's tremendous uncertainty about the future: healthcare delivery, the relationships among physicians, hospitals, nurse practitioners, and physician assistants -- things are evolving rapidly in so many ways." Concerning the reduction in rates, he says, "One could say they'd be even lower if the cost of claims were not so high."

According to Richard Anderson, MD, CEO of The Doctors Company, the med-mal situation today is "a mixed bag. Over the past five to six years, some things are better: the frequency of claims declined 40% in 2012 compared with 2004. That's welcome." But the rising yearly cost -- 50% higher in 2012 than in 2000 -- is a concern. "Overall, there is still an unconscionably high number of claims. The average neurosurgeon has one claim every five years."

And yet, "We still win 82% of all claims, so most of the claims that the plaintiff's bar is filing are fruitless."

Taylor Lincoln, Director of Research for Public Citizen's Congress Watch, says, "Claims have gone down so much that there's not too loud a call for reform, and the issue has receded politically." He expressed concern that fewer claims mean a lot of injured people aren't getting help. But, he says, "I try to steer the debate: It's not about litigation; it's about errors. Though it's better for patients if they're getting more damage awards, the real solution is fewer errors."


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