We have heard a good deal about the fact that, per capita, the United States spends twice as much for medical care as Canada. We have not heard anything about the fact that, per capita, there are five times as many medical liability suits filed in the United States. The inefficiencies of our current medical liability system, escalating and unpredictable awards, and the high cost of defending against lawsuits -- even those without merit -- contribute to the increase in medical liability insurance premiums, which are at or near all-time highs.
As insurance becomes unaffordable or unavailable, physicians must make tough decisions, including altering or limiting their services because of liability concerns, which impedes patient access to care.
It also needs to be noted that the cost of medical liability premiums is only the tip of the iceberg. The hidden cost of our liability system adds billions of dollars to the cost of health care each year. In every encounter between the doctor and the patient there is another presence in the room -- the specter of the plaintiff's attorney. This results in the practice of defensive medicine -- ordering otherwise unnecessary tests in order to offer a better defense in case a malpractice claim is made. The cost of defensive medicine results in higher health insurance premiums for patients.
To address the medical liability problem, we hope that medical liability reforms based on California's Medical Injury Compensation Reform Act (MICRA) model will be considered as an integral part of health care reform. The MICRA reforms include a $250,000 cap on non-economic damages, sliding scale for attorney fees, periodic payment for future damage awards, a requirement to file a certificate of merit in any medical liability lawsuit and expert witness requirements. We're lucky to have certificate of merit in Pennsylvania, but we feel similar policies would be beneficial in addressing health system liability reforms on the national level.
In addition to MICRA-based reforms, other options have the potential to help improve the medical liability system. These options include:
---Early disclosure and compensation programs. With this model, physicians would be required to notify a patient of an adverse event within a limited period of time. Health care providers offering to compensate for injuries in good faith would be provided immunity from liability. Payments for non-economic damages would be based on a defined payment schedule developed by the state in consultation with relevant experts and with the Secretary of the Department of Health and Human Services (HHS).
---Health courts. Health courts would provide a forum, either a bench or jury trial, where medical liability actions could be heard by judges specially trained in medical liability matters and who hear only medical liability cases. The negligence standard would be the minimum threshold for compensation to award damages. The recovery of economic damages would not be limited, but non-economic damage awards would be based on a schedule. Medical experts and expert witnesses would have to meet certain qualifications.
---Expert witness qual ifications. Several states have amended the statutory qualifications for those who may serve as medical expert witnesses at trial. Some states (such as Georgia, Illinois, and Texas) have created additional standards that medical expert witnesses must meet in order to ensure that expert testimony is presented by an individual with real expertise.
We also recommend providing medical liability protections to those physicians who provide volunteer medical services during an emergency or disaster and who provide emergency services mandated by the federal Emergency Medical Treatment and Labor Act.
It is time to find a bipartisan solution to improve the health care system for America's patients, reduce the incentives for defensive medicine, and protect physicians from unaffordable liability premiums. As we consider health system reform legislation, it is essential that policymakers explore innovative solutions for addressing medical liability reform. Without meaningful medical liability reform any health care reform experiment is doomed to failure.
Dr. Eric L. Zager is presi dent of the Harrisburg-based Pennsylvania Neurosurgical Society.