The Future Of Medical Malpractice

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Medical malpractice is an area of unimaginable complexity, defined by the warring interests of various groups. It adapts and keeps pace with changes in society, legislation and the field of medicine, having enormously evolved in a brief span of time. The mid 20th century saw the first manifestations of a medical malpractice landscape that resemble that of today. But the process of evolution has not ceased. Far from it. The legislation, form, definitions, and understanding of medical malpractice are still in flux, still subject to the evolution, it began some time ago. With the presidency recently changing hands, and society experiencing this moment of fervent technological innovation, there are many factors weighing into how medical malpractice will look in the future. In examining some of these factors, we can develop an understanding of what that outlook will resemble: a prognosis if you will.

Medical liability serves to improve the quality of care and deter errors, holding healthcare personnel to the highest possible standard and promoting the understanding that there is no tolerance or room for sloppiness in the profession they’ve undertaken. It may be argued that the quality of healthcare patients receive is sensitive to the standards imposed by a medical liability policy. Providers are forced to adhere to these standards not only as a matter of liability but simple legality.

A study in the Journal of Health Economics addressed criticism of malpractice suits contending that they were largely unrelated to provider performance. [1] The study measured 17 types of adverse medical effects, finding that hospitals with the lowest rates of PSIs (patient safety indicators) had the highest rates of malpractice claims. The study ostensibly concluded that when hospitals increased patient safety indicators, they would decrease malpractice claims and payouts, proving that provider performance was indeed a determinant of malpractice claims. Providers who actively seek to avoid malpractice suits will reduce their risk by offering the safest healthcare experience possible, and strictly adhering to the standard of care laid out in tort law.

The Push to Reform Tort Law

This model should work very well in theory, yet the fact remains: medical error is still the third leading cause of death in the United States. [2] Nevertheless, tort laws in many states make it exceedingly difficult for injured plaintiffs to even file a claim let alone recover compensation for their injuries. Medical malpractice claims have faced mounting skepticism and hostility on the legislative front; they are considered an indirect but chief contributor to rising healthcare costs. State legislatures have struggled to find that impartial middle ground that doesn’t excessively favor patient or provider, with mostly unsatisfactory results. Access to affordable healthcare is a hot political button issue, but efforts to widen access and decrease costs will come up short if they do not maintain a rigorous standard of care – a patient’s ability to bring rightful malpractice claims is fundamental in upholding the standard of care.

Meaningful tort reform would remove unnecessary barriers and stringent statutory limits on filing malpractice claims. These provisions which make it more difficult to file are meant to decrease malpractice claims, payouts and as a result, healthcare costs – without giving meaningful consideration as to which claims are being barred. Patients should not be prevented from securing compensation for a medical injury because of healthcare politics. Ideally, revisions to tort law should enable successful screening out of frivolous claims, while ensuring every meritorious claim is dutifully heard.

Medical Malpractice Damage Caps

Another facet of malpractice claims will likely see a good deal of legislative discourse in the future is that of damage caps. Detractors of malpractice suits argue that sizable damage payouts undermine efforts to keep healthcare costs down. Large payouts, over time, have had the effect of raising liability insurance for physicians, a cost which is passed from doctor to patient, increasing the overall cost of healthcare. This has led many states to impose damage caps on malpractice payouts, while other states have concluded that such caps are unconstitutional. In an effort to attract more physicians, some states have brutally lowered damage caps to amounts that do not fairly compensate certain injuries. Commentators suggest that providers in states with high or no damage caps will practice defensive medicine, fearing highly-paid liability claims. However, a study in the Journal of Public Medicine found that there was no considerable association between the quality of care and the adoption of damage caps. [3] If meritorious malpractice claims are to be filed with reasonable ease, they must also be compensated in reasonable sums. Depriving the injured would simply undermine the integrity of tort law.

Alternative Dispute Resolution

Moving forward, the future of medical malpractice law may be heavily centered around alternative dispute resolution or ADR. Some form of it is already in place in many states, each with their own legislation dictating ADR proceedings. Although ADR abides by these certain legal guidelines and provisions, it is far speedier and less formal than a full-fledged malpractice lawsuit. In some states, it is a mandatory precursor to formal litigation, in an effort to resolve disputes early on and reduce the number of lawsuits coming to fruition, thereby reducing the costs associated with malpractice litigation such as damage payouts and lawyer fees. The only clause of the Affordable Care Act, colloquially known as Obamacare, that concerned medical malpractice stated an express desire to promote ADR. Section 10607 of the Act “authorize[s] the Secretary of Health and Human Services to award demonstration grants to states for the development, implementation, and evaluation of alternatives to current tort litigation.” [4]

The ACA did have certain direct consequences that indirectly influenced the landscape of medical liability. By increasing the number of people carrying health insurance (whether it be Medicare, Medicaid or private insurance), a greater number of people were receiving healthcare. More people carrying health insurance meant, with some degree of certainty, that there would proportionately be more malpractice lawsuits. The ACA required many significant expenditures (overhead costs) for health care providers, which proved difficult to meet for some private health care providers. This compelled them to join health care provider groups or hospitals under whom they would work for a salary, and the group or hospital would pay the overhead costs. This proximately led to a division in in-patient and outpatient care, and a fragmentation of the patient’s health care experience and made more than one provider responsible for the patient’s treatment. This could lead to increased patient annoyance, confusion and an atmosphere of dissatisfaction which engender more malpractice lawsuits. [5]

The Affordable Care Act and Medical Malpractice

It is worthwhile to evaluate the effects of the ACA especially while it is still in effect, however with healthcare at the forefront of the greater political agenda and the Trump administration set to “gut the program,” the implications of the ACA seem to be increasingly irrelevant. With only minimal allusions to medical malpractice in the ACA, some have speculated that it will not be greatly affected if the ACA is done away with. Tom Price, the secretary of Health and Human Services holds that there is a crisis of medical malpractice in the United States, an opinion which may have a strong bearing in the future of medical tort litigation in the country. Price advocates a replacement bill to the ACA that would effectively install state administrative tribunals to process medical malpractice claims. Price also advocates the use of damage caps and using strict adherence to clinical standard as a defense in malpractice suits. Industry experts disagree with Price’s assertions that the country is in the midst of a malpractice crisis, citing decreasing payouts levied on defendant physicians since 2001, and the relative ease with which providers can obtain malpractice insurance. [6]

That being said, while healthcare reform is terribly relevant in current political discourse, medical malpractice as a discrete component of healthcare reform has hardly been at the forefront of the political agenda. Although healthcare as a whole retains its valued seat on the roster of heavyweight ‘issues,’ it remains to be seen what political posturing Trump will take on with regards to malpractice. The future of medical tort litigation is, at best, unclear. An impending repeal of Obamacare and its replacement with an un-elucidated alternative could drastically (or insignificantly) change the climate of medical malpractice.

Tort reform in the past has been the territory of individual states. Federal tort reform could be at odds with that which is already in place in a given state. With medical malpractice law varying significantly state to state, physicians and savvy patients have the option to “vote with their feet,” and any sweeping federal medical tort reform could infringe on this freedom and the sense of legislative “variety” throughout the country. However, with Trump facing an already bloated to-do list, medical malpractice reform is far from the top, meaning we will be contending with existing law for better or for worse for some time onward.

It seems the future of medical malpractice will play out on a state-by-state basis. With states having the express right to legislate matters regarding insurance, medical malpractice is explicitly the territory of states to legislate. Every state is also subject to case law precedents set in their own malpractice cases. So depending on the unique history of cases brought forward, each state will have unique case law precedents.

Medical Malpractice Decisions on the State Level

Recently the Indiana Supreme Court handed down an opinion in the case of McKeen v. Turner. At the heart of McKeen was a dispute between two past medical malpractice cases which each worked to set a precedent, but those respective precedents were at odds with one another. K.D. v. Chambers, one of the cases in question, held that “a malpractice plaintiff cannot present one breach of the standard of care to the panel and, after receiving an opinion, proceed to trial and raise claims of additional, separate breaches of the standard of care that were not presented to the panel and addressed in its opinion.” Miller v. Memorial Hospital of South Bend, the other precedent case, held that “there is no requirement for … plaintiff to fully explicate and provide the particulars or legal contentions regarding the claim.” When the court found that McKeen had adequately kept to the standard of care, Turner cited an instance of negligence in prescription, an offshoot allegation not made in the complaint at the outset of the case. McKeen contended that tacking on this claim after the fact was not legally viable. Both parties turned to the Supreme Court to determine how to proceed with this question in future medical malpractice cases. The Indiana Supreme Court struck down K.D., which would allow future plaintiffs to “proceed to trial and raise claims of additional, separate breaches of the standard of care that were not presented to the panel and addressed in its opinion.” This is an example of case law guiding the unique medical malpractice policy of a given state, giving rise to a patchwork of different legal dispositions toward medical malpractice state to state. [7] [8]

Individual states could enact legislation in the future that could greatly harm or help medical malpractice plaintiffs, making it harder or easier to file suit and win. This would depend on the healthcare climate in that given state. A state’s medical malpractice policy can have significant bearing on its ability to attract physicians and other medical professionals. If healthcare providers believe that a state’s policy is too punitive or disproportionately favors plaintiffs, they may have an abysmal figure of practicing physicians and medical personnel. Therefore, states try to evenhandedly legislate so as not to deter physicians from practicing in that state, while still allowing plaintiffs to bring rightful claims of malpractice forward – without forcing them to jump through legal hoops or imposing stringent damage caps. Every state has tried to find that middle ground, but they almost invariably they arrive at very different conclusions.

Allowing Indiana to continue functioning as an example, the state has steadily increased damage caps since its initial tort reform act in 1975. $500,000 graduated to $750,000 in 1990, then to $1.25 million in 1999. Effective July 2017, that cap is set to increase again to $1.65 million. The Indiana legislature has even set the cap to increase again in 2019. The cap for attorney compensation from damages will be increased as well, from 15% to 32%. Caps usually function to deter constitutional scrutiny, since many states have voided damage caps on the grounds that they are unconstitutional. Caps help to rein in expenses for healthcare provider, in turn reining in the costs of healthcare itself. However, depending on the gravity of a claim, they stand to deprive an injured claimant of rightfully deserved damages. Legislators walk a fine line in this respect, as they do not want to encourage an undue quantity of meritless claims because of enticing damage awards. Commentators expect this increase may warrant an increase in the number of malpractice claims, as well as the number of practicing malpractice attorneys. Indiana is not isolated in the questions it confronts. They are common conundrums a majority of other states face as well. [9]

Medical malpractice has had a storied, complicated legal history in the United States. The function and form of medical malpractice has been legally illuminated over the years, with competent legislation clarifying its purpose and best practices. The future of medical malpractice will hinge on the resolution of an array of extant issues in the field. As the political discourse unfolds, observers will see which legal dispositions and social changes shape medical tort law in the future.


[1] Black, Bernard S. and Wagner, Amy R and Zabinski, Zenon, The Association between Patient Safety Indicators and Medical Malpractice Risk: Evidence from Florida and Texas (May 5, 2016). American Journal of Health Economics, 2016 Forthcoming; Northwestern Law & Econ Research Paper No. 11-20.

[2] Makary Martin A, Daniel Michael. Medical error—the third leading cause of death in the US. BMJ 2016; 353 :i2139

[3] Nelson, Leonard J, Michael A Morrisey, and Meredith L Kilgore. “Damages Caps in Medical Malpractice Cases.” The Milbank Quarterly 85.2 (2007): 259–286. PMC. Web. 17 Apr. 2017.

[4] Patient Protection and Affordable Care Act, 42 U.S.C. § 10607(2010).

[5] J.D., Darryl S. Weiman M.D. “The Affordable Care Act and Medical Malpractice Reform.” The Huffington Post., 04 June 2016. Web. 7 Apr. 2017.

[6] Terhune, Chad | Kaiser Health News. “Top Republicans Say There’s a Medical Malpractice Crisis. Experts Say There Isn’t.” The Washington Post. WP Company, 30 Dec. 2016. Web. 7 Apr. 2017

[7] McKeen v. Turner, 61 N.E.3d 1251 (Ind. Ct. App. 2016)

[8] K.D. v. Chambers Case No. 49A04-1010-CT-636 (IN Ct. App., Jul. 13, 2011)

[9] Indiana State Medical Association. “E-Reports.” KEY FEATURES OF INDIANA’S MEDICAL MALPRACTICE ACT (n.d.): n. pag. Web.

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