Medical malpractice insurance is a specialized type of professional liability insurance that covers physician liability arising from disputed services that result in injury or death of the patient. Medical liability insurance is mandatory in almost every state and most medical systems as a requirement to practice. medical malpractice occurs when a hospital, doctor, or other healthcare professional, by negligent action or omission, causes an injury to a patient. Neglect can result from errors in diagnosis, treatment, aftercare, or health management.
Medical malpractice occurs when a patient is harmed by a doctor (or other medical professional) who fails to perform their medical duties competently. State medical malpractice rules vary from when you should file your lawsuit to whether you should notify the doctor in advance. But there are some general principles and broad categories of rules that apply to most medical malpractice cases. This is an overview of the law and some of these special rules.
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Health care has grown in the last 40 years. Both the number of medical malpractice claims and the compensation paid per claim increased rapidly from the 1960s to the 1980s (Danzon, 2000). After 1990, the frequency of claims stabilized at around 15 claims per 100 physicians per year, but claim compensation continued to increase, doubling in real terms between 1990 and 2001 (Thorpe, 200. However, in the late 2000s, there was some evidence that the frequency of complaints had begun to decline (Weiss, 200.
At the same time, the system can create incentives to take too much precaution or defensive medicine. Although doctors are largely insured against the financial costs of malpractice lawsuits, uninsured non-financial costs, such as lost time, stress, and reputational damage, can be much more important. And as Craswell and Calfee (198) show, uncertainty in the legal standard of care can also lead to excessive caution, due to the all-or-nothing nature of the liability decision. On the contrary, “indirect reforms have had a less consistent impact on liability and, therefore, on negligence pressure.
One of the most important reforms of this type is the limits to joint and several liability. By default, the joint and several liability doctrine allows the plaintiff to collect all of his damages from any defendant, regardless of the extent of the defendant's fault. Limits to joint and several liability eliminate the doctrine of joint and several liability, exclude damages for pain and suffering arising from it, or prohibit its application if the defendants did not act together. Other important indirect reforms impose mandatory periodic payments, which require that damages in certain cases be disbursed in the form of an annuity that is paid over time and limits the contingent fees that plaintiffs' lawyers can collect.
Some examples of studies that have estimated the effects of reforms on negligence pressure are Danzon (1982, 198); Sloan, Mergenhagen and Bovbjerg (198); Thorpe (200); Avraham (200; 2) and Born, Viscusi and Baker (200). However, considered on their own, the estimates of these studies are only the first step in answering the political question of interest. Show How Liability Reforms Affect Physicians' Incentives; They Don't Show How Liability Reforms Affect Physicians' Behavior. To assess the efficiency of preventive behavior induced by the liability system, we need to compare how precautionary costs and adverse event losses respond to changes in the legal environment.
However, concerns about unobserved differences between suppliers and between small geographical areas qualify these results. The studies mentioned above use information about claims or premiums at the level of physicians, hospitals, or individual areas within a single state for a limited period of time to measure pressure for negligence, but malpractice laws within a state at any given time are constant. Therefore, the variation in your negligence pressure measurements may be due to unobserved factors that correlate with the cost and outcomes of care. For example, the frequency of claims or insurance premiums for a particular provider or area may be relatively high because the provider is of relatively low quality, because patients are particularly ill (and therefore prone to adverse outcomes), because patients had more “liking” for medical interventions (and therefore, were more likely to disagree with their provider about management decisions), or due to many other factors.
Because these factors are extremely difficult to fully capture in observational data sets, the estimates from these studies represent a combination of the true effect of negligent pressure on treatment decisions or outcomes and unobserved differences in providers, patients and the areas. One way to address these concerns is to identify the effects of negligence pressure with variation in liability law reforms between states and over time. This technique produces impartial assessments of the impact of negligence pressure on the assumption that the adoption of malpractice reforms is not correlated with unobserved differences between states in the determinants of treatment decisions and health outcomes. This assumption can be criticized; for example, see Danzon (2000) and the Congressional Budget Office (200).
Two studies identify the mechanism through which liability reforms affect the behavior of physicians, helping to predict the effects of existing reforms under different market conditions and of new, unproven reforms. At Kessler and McClellan (2002b), we compare longitudinal data from Medicare with legal reforms and data on health insurance marketplaces to explore the ways in which managed care reform and accountability interact to affect treatment intensity and health outcomes. We report that direct reforms, such as damage limits, reduce defensive practices in areas with low and high levels of managed care enrollment. At least for patients with less severe heart disease, managed care and direct reforms are substitutes in the effort to reduce defensive practices, so the reduction in defensive practices that can be achieved with direct reforms is lower in areas with high enrollment in managed care.
At Kessler and McClellan (2002a), we integrated four unique data sources to illuminate how reforms affect negligence pressure and how reform-induced changes in incentives provided by the accountability system affect treatment decisions, medical costs, and health outcomes. That document coincides by state and year with the Medicare longitudinal data discussed above (updated to include all years 1984-199) with data on legal reforms, medical-level data on the frequency of malpractice claims from the American Medical Association, and claims-level data for Doctor's negligence. Insurance Association of the United States. We show that direct reforms improve medical productivity, primarily by reducing malpractice claim rates and compensation conditional on a lawsuit, suggesting that other policies that reduce the time spent and the number of conflicts involved in defending against a lawsuit may also reduce defensive practices.
A representative finding is that, at least for cases involving elderly patients with heart disease, an unproven reform that would reduce the burden of legal defense for doctors and hospitals by a quarter, which is within the range of policy possibilities, could be expected to reduce treatment intensity doctor by approximately 6 percent, but not to increase the incidence of adverse health outcomes. In the same population, a policy that accelerates claim resolution by six months could generally be expected to reduce hospital treatment costs by 2.8 percent without major adverse outcomes. This finding is consistent with Kessler and McClellan (199), where we report wide differences in physicians' perceptions of the impact of negligence pressure in states with and without liability reforms. Several more recent studies update and refine these estimates of the effects of grievance reform, generally finding a small but significant impact on positive defensive medicine.
Hellinger and Encinosa (200) find that states that adopt limits on non-economic harm have overall health spending 3-4 percent lower than states that don't. Baicker, Fisher and Chandra (200) find that higher malpractice premiums and premiums are associated with higher Medicare spending, especially for imaging services often thought to be driven by doctors' fears of malpractice; Smith-Bindman, McCulloch, Ding, Quale and Chu (forthcoming) the latter findings are confirmed by an analysis showing increased use of CT scans and emergency MRI scans in states without reforms. Sloan and Shadle (200) find that direct reforms have a negative, but statistically negligible, effect on Medicare spending, with no significant effect on health outcomes. Avraham and Schanzenbach (20) show that the effect of reform-induced reductions in health spending translates into increases in private health insurance coverage.
Another study examines the incidence of defensive practice in obstetrics. Using data from national birth certificates, Dubay, Kaestner and Waidmann (199) show that the risk of negligence claims leads to higher rates of C-section births, but not to better birth outcomes. Similarly, Yang, Mello, Subramanian and Studdert (200) find a negative effect of caps on cesarean section rates; although Currie and MacLeod (200) (also analyzing caesarean sections) find a positive effect of limits and a negative effect of limits on joint and several liability. As evidence on positive defensive medicine has accumulated, its conclusions have become more widely accepted.
For example, the Congressional Budget Office (200) found that adopting direct reforms leads to a significant reduction in Medicare hospital spending per beneficiary, but questioned whether its findings, and mine with Mark McClellan, are valid estimates of the causal effect of reforms. However, the Congressional Budget Office (Elmendorf, 2000) reviewed this previous assessment of the effects of liability reform and concluded that “the weight of empirical evidence now demonstrates a link between liability reform and the use of health services. The evidence of negative defensive medicine is more varied. In one of the few documents that measures how negligent liability leads to patient avoidance, Dubay, Kaestner and Waidmann (200) examine the effect of tort reforms on the use of prenatal care and child health.
They find that negligent pressure causes prenatal care to begin later in pregnancy, albeit without significant harmful effects on the baby's health. At Kessler, Sage and Becker (200), my co-authors and I applied the approach of Kessler and McClellan (199) to assess the impact of reforms on the supply of physicians. We compared data from the American Medical Association's Physician Masterfile on the number of practicing physicians in each state for each year from 1985 to 2001 with legal reforms and data on healthcare markets. We found that three years after adoption, direct reforms increase the supply of physicians by 3.3 percent, controlling fixed differences between states and other state characteristics that vary over time; using similar methods, Encinosa and Hellinger (200) report even greater effects.
On the contrary, Klick and Stratmann (200) and Matsa (200) find no effect of the reforms on the total supply of doctors, but a significant positive effect on the supply of doctors in specialties at high risk of neglect and in rural areas, respectively. A guideline-based malpractice system would preserve most aspects of the current tort system, but would change the method by which the medical malpractice element of a medical malpractice claim is judged. Under common law, physician negligence is a matter of fact for the jury, informed by expert testimony. Although the guidelines may seem like an obvious source of information regarding the negligence of a given treatment decision in a medical malpractice case, courts generally prohibit the guidelines from being admitted as evidence under the “rumor” rule, which prohibits the introduction of out-of-court statements as evidence.
In some cases, guidelines are allowed under the “learned treaty” exception to the rumor rule. But even in such cases, under the common law of most states, no set of guidelines necessarily surpasses any other, and the guidelines carry no more weight than any other form of expert testimony (U.S. Congressional Office of Technology Assessment, 199.The adoption of a guideline-based system would generally require the adoption of legislative measures. Corporate responsibility advocates argue that it would make the existing malpractice system more efficient (Sage, 199) .They argue that healthcare organizations, such as hospitals or health plans, have the ability to monitor doctors at a comparatively low cost, so these organizations could serve as an efficient intermediary between physicians and the grievance system.
In addition, to the extent that medical errors are caused by systemic errors rather than by the carelessness of individual physicians, assigning responsibility to institutions could lead to system-wide quality improvement. For the same reasons, the imposition of corporate liability could improve the functioning of the medical malpractice liability insurance market. Opponents emphasize that corporate responsibility can already be implemented privately, but it is rare, which they argue suggests that gains from corporate responsibility may be limited. Proponents have two answers to this criticism.
First, they argue that gains from corporate responsibility can only be achieved if a large number of suppliers adopt it. According to this reasoning, efficiency improvements resulting from changes in medical practices due to private agreements “extend from providers who adopt them to those who do not” (Baker, 199.Second, they argue that failures in negotiation inhibit the ability of physicians and institutions to health to capture the benefits corporate responsibility. Hospitals' relationships with doctors are restricted by anti-bribery laws that prevent hospitals from paying doctors for referrals. In addition, doctors and hospitals cannot realize or divide the corporate liability gains that would accrue for patients in the form of diminished (uncompensated) damages for medical errors.
In both cases, proponents argue that statutory reform is necessary to facilitate the adoption of a corporate responsibility system. No state has adopted legal reforms to enforce or facilitate corporate liability, so there is little systematic empirical evidence on their effects. However, existing examples of voluntary corporate responsibility deserve greater empirical attention. Along with the examples mentioned above, liability for negligent acts of staff physicians is expressly assumed by some managed care organizations, such as Kaiser Permanente, and government organizations such as the Veterans Administration (Sage, Hastings and Berenson, 199).
The effects of corporate responsibility could be identified by comparing its practices with the practices of suppliers in otherwise similar organizations that do not assume responsibility. Binding alternative dispute resolution refers to agreements between providers and patients to bring disputes for alleged malpractice to a third party other than a court. Proponents of this approach argue that it compensates victims faster, more equitably, and with lower transaction costs. It is also alleged to improve the deterrent signal for suppliers, due to their more informed and consistent decision-making process (Rolph, Moller and Rolph, 199.Opponents of binding alternative dispute resolution argue that their decisions are biased towards defendants, because firms that supply arbitrators and arbitrators themselves, are more likely to develop links with supplier organizations than with individual claimants.
In addition, opponents criticize the fact that parties to a binding alternative dispute resolution generally have limited appeal rights and, therefore, a limited capacity to correct erroneous decisions (Polzer, 2000). As with corporate responsibility, a strong argument against alternative binding dispute resolution is that it can already be implemented privately, but rarely is. In a survey of California doctors and hospitals, Rolph et al. According to a related survey conducted by the California Health Plan Association, only Kaiser Permanente and six small plans used alternative dispute resolution to adjudicate negligence claims; other plans used it only to resolve contract disputes.
Advocates of alternative dispute resolution respond that such agreements are technically enforceable under federal law, but state legislative and judicial hostility prevents their implementation (Metzloff, 199.Specifically, the Federal Arbitration Act of 1925 makes binding arbitration enforceable and prevails state laws inconsistent; however, state legislatures and courts have imposed limitations on arbitration that have been upheld in federal courts (Polzer, 2000). While no state has adopted any of these reforms, three types of studies can be used to assess their potential effects. First, in the 1970s, some states adopted no-fault for car injuries, and studies of its consequences highlight some strengths and weaknesses. According to Carroll, Kakalik, Pace and Adams (199), the costs of litigation, settlement and other forms of compensation administration in a typical motor vehicle liability system amounted to approximately one-third of the cost of insured injuries (although this excludes funded costs).
public administration of the civil justice system, which are substantial). With a typical no-fault plan, they find that transaction costs would be reduced by 39 percent. Also show that no-fault offers compensation for car accidents faster and makes you more closely track economic losses. Under a typical tort system, claimants receive initial compensation payments 181 days after the accident; under a typical no-fault system, claimants receive initial compensation payments 116 days after the accident.
In addition, under a typical tort system, plaintiffs with less serious injuries tend to receive more than their economic loss (see also Carroll and Abrahamse, 1999, and the work cited there, for evidence on the extent of overcompensation due to fraud and abuse), with 62 percent of all people injured receive more than their economic loss; conversely, plaintiffs with more serious injuries tend to receive less than their economic loss, and 27 percent of injured people receive less than their economic loss. Carroll and Kakalik (199) argue that a typical no-fault system, compared to a typical grievance system, reduces both the overcompensation of minor injuries and the subcompensation of major injuries. Empirical work investigating the effects of no-fault on the car accident rate generally finds that it leads to a higher number of fatal accidents, and some articles based on previous data find no effect; this evidence is reviewed in Kessler and Rubinfeld (200. The effect of no medical fault on physicians' incentives could be greater than the effect of no-fault car on driver incentives; after all, in the automotive context, drivers still face strong incentives to avoid accidents, even no-fault, the personal cost of injuries and criminal sanctions, which could be said to be weaker in the medical context.
Second, little is known about how the accountability system will interact with recently proposed payment reforms that seek to reduce incentives to provide cost-effective care. Kessler and McClellan (2002b) finding that the reduction in defensive practices achieved with tort reforms in the 1990s was lower in areas with high enrollment in managed care suggests that payment and grievance reform will be a substitute in the effort to reduce defensive medicine; future research could seek to model these relationships in a more formal way. Third, the effect of the malpractice system and grievance reform on health spending growth, as opposed to the level, also remains an important topic for future research. On the one hand, the fact that most high-income countries have experienced similar rates of spending growth despite having very different liability systems suggests the lack of a causal link (Smith, Newhouse and Freeland, 200.
On the other hand, because the standard of care required by the neglect rule changes with the availability of new treatments, higher-pressure malpractice regimens have the potential to encourage faster spread of technology and faster growth in spending. Although studies that find an effect of negligence pressure on the use of high-tech services, such as intensive cardiac care and imaging, suggest that the accountability system may play a role in technology adoption decisions, there is surprisingly little solid evidence that they do. I would like to thank Ashley Ensign for their excellent research assistance and the Manhattan Institute, the National Institute on Aging through the National Bureau of Economic Research, and the Stanford Office of Undergraduate Research and Advisory for their financial support. Some parts of this essay are largely based on my previous work.
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