Question: Recent developments in malpractice include the following:
A. Severity and frequency rates continue to rise.
B. Apology laws appear to be very effective in reducing claims.
C. Litigation surrounds whether an assistant may obtain a patient’s informed consent on behalf of the doctor.
D. A and B.
E. A, B, and C.
Answer: C. Over the past decade, malpractice claims have in fact diminished, accompanied by a leveling or reduction in premiums.1 Rates have plummeted to roughly half of previous levels, averaging six claims per 100 doctors in 2016.
According to The Doctors Company, internists paid an average premium of $15,853, compared with an average of $19,900 in 2006, general surgeons $52,905 instead of $68,186, and obstetricians $72,999, a drop from $93,230. Even claims-plagued Florida’s Dade County has seen a dramatic drop in internist premiums by some $27,000, down to $47,707.2
Caps on noneconomic damages continue to be a popular means of combating runaway malpractice payouts. California is the pioneer in enacting this reform measure, and many others have since followed suit. The California Supreme Court has ruled that reforms passed in 1975 under its Medical Injury Compensation Reform Act (MICRA) are constitutional, as they are rationally related to the legitimate legislative goal of reducing medical costs.3 MICRA limits noneconomic recovery in medical negligence cases to $250,000. However, other jurisdictions – notably Georgia, Missouri, and Illinois – have ruled them unconstitutional.
The latest attack on MICRA, in 2015, concerned a wrongful death suit brought by a woman whose mother died from hemorrhagic complications related to Coumadin use following heart surgery.4 Her constitutional challenges included violation of equal protection, due process, and the right to a jury trial. But these were essentially all grounded on an entitlement to recover additional noneconomic damages sufficient to cover attorney fees. The trial court had reduced her $1 million noneconomic damages to $250,000 as required by MICRA. A California appeals court rejected her claim as being “contrary to many well-established legal principles.”
Disclosure of medical errors is a relative newcomer as an ethical and effective way of thwarting potential malpractice claims. Many states have enacted so-called “apology laws,” an outgrowth of the communication and resolution programs popularized by the Lexington (Ky.) VA Medical Center, University of Michigan Health System, Harvard’s affiliated institutions, and Colorado’s COPIC Insurance.
Apology laws disallow statements of sympathy from being admitted into evidence. In some cases, these laws may assist the physician. For example, the Ohio Supreme Court has ruled that a surgeon’s comments and alleged admission of guilt (“I take full responsibility for this” regarding accidentally sectioning the common bile duct) were properly shielded from discovery by the state’s apology statute, even though the incident took place before the law went into effect.5
However, apology laws do vary from state to state, and some do not shield admissions regarding causation of error or fault.
A recent study suggests that apology laws don’t work. A Vanderbilt University study published online used a unique dataset covering all malpractice claims for 90% of physicians practicing in a single specialty across the country.6 The findings revealed that, for physicians who do not regularly perform surgery, apology laws actually increased the probability of facing a lawsuit. For surgeons, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim.
The study’s authors concluded that “apology laws are not substitutes for specific physician disclosure programs, and that the experiences of these types of programs are not generalizable to the physician population at large. In other words, simply being allowed to apologize is not enough to reduce malpractice risk.”
In the informed consent arena, the latest development in the law revolves around whether a physician assistant, in lieu of the surgeon himself, can obtain informed consent from a patient.
In Shinal v. Toms,7 Megan Shinal underwent surgery to remove a craniopharyngioma, but it regrew and required re-exploration by Dr. Steven Toms. Dr. Toms testified that Ms. Shinal had agreed that he would determine during the surgery whether he should remove the entire tumor or perform a partial resection. The operation was complicated by a carotid artery perforation, which left the patient with impaired vision and ambulation.
The complaint asserted that Dr. Toms’s physician assistant, not Dr. Toms himself, had provided the actual discussion during the informed consent process, and thus the patient’s consent was invalid.
The jury was allowed to consider the information provided by the doctor’s support staff, and the Superior Court of Pennsylvania affirmed the validity of the patient’s consent, holding that consent is based on the scope of information relayed rather than the identity of the individual communicating the information. This carefully watched case is now on final appeal before the Supreme Court of Pennsylvania.
At a personal level, physicians dread the stress surrounding medical malpractice litigation. The process frontally attacks their competence and consumes much time and energy, notwithstanding there being little or no exposure of personal assets because of insurance protection. Virtually all doctors practice defensive medicine, which has been defined as “deviation from sound medical practice that is induced primarily by a threat of liability.”
At a societal level, defensive medicine is reported to add substantially to the nation’s medical bill. The figure tossed around is $12 billion to $50 billion a year, based mostly on estimates by the American Medical Association and an older study extrapolating potential Medicare savings from litigation over heart disease.8
A more recent report continues to emphasize the high cost of defensive medicine.9 Jackson Healthcare invited 138,686 physicians to participate in a confidential online survey to quantify the costs and impact of defensive medicine. More than 3,000 physicians spanning all states and medical specialties completed the survey; however, this represented only a 2.21% response rate.
The authors concluded that defensive medicine is a significant force driving the high cost of health care in the United States, and that physicians estimate the cost of defensive medicine to be in the $650 billion to $850 billion range, or between 26% and 34% of annual health care costs.
Skeptics question the way the profession defines defensive medicine, pointing out that malpractice concerns may not be the primary reason, as most interventions add some marginal value to patient care. There may also be conflicting motivations of physicians, such as financial or other personal rewards.
Above all, there is no acceptable method for measuring the extent and use of defensive medicine, and survey reports are apt to be misleading because of bias and the lack of controls and baseline data.
Looking ahead, what can we expect for malpractice law under the Trump administration? Tom Price, MD, a former Republican congressman from Georgia, is an orthopedic surgeon and the new secretary of the Department of Health & Human Services. He has previously spoken passionately about tort reforms such as defensive medicine, damage caps, health tribunals, and practice guidelines. Many states have already incorporated some of these measures into their own tort reforms – with salutary results. It remains to be seen whether HHS will deem any omnibus federal legislation necessary at this point.
Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the materials have been taken from my earlier columns in Internal Medicine News. For additional information, readers may contact the author at siang@hawaii.edu .
References
1. JAMA. 2014 Nov 26;312(20):2146-55 .
2. “ Malpractice 2017: Do We Need Reform? ” Internal Medicine News, March 1, 2017, page 1.
3. Fein v. Permanente, 38 Cal.3d 137 (1985) .
4. Chan v. Curran, 237 CA 4th 601 (2015) .
5. Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440 (2013) .
6. Available at https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2883693 .
7. Shinal v. Toms, 122 A. 3d 1066 (Pa. Super. Ct. 2015) .
8. Q J Econ. (1996) 111 (2): 353-390 .
9. Available at www.jacksonhealthcare.com/media/8968/defensivemedicine_ebook_final.pdf .
