With the new President in the White House, healthcare policies have been put on, and taken off, the proverbial table.  In light of the rubber band effect that many policies have, the question has been posed – is “Medical Malpractice Reform Still on the Table”?

According to experts at Stanford’s law and medical schools, the answer is “yes”.  A recent commentary published in the New England Journal of Medicine by two professors at Stanford indicated that several bills have been sponsored with an aim at limiting medical liability.  These bills are still on the federal policy agenda even though other healthcare reform bills have been removed.

Who Benefits from Medical Malpractice Reform?

The question of who benefits from medical malpractice reform is, perhaps, the most contentious element of reform policies.

Supporters of Limited Liability

On one side of the debate, you have people like House Speaker Paul Ryan and Secretary of Health and Human Services Tom Price arguing that medical malpractice is wrought with frivolous lawsuits.  Supporters of such an argument further claim that these lawsuits drive up the cost of medical malpractice insurance premiums, making them unaffordable for some doctors who then have to close their business.

Supporters of limiting medical malpractice liability also contend that healthcare providers and hospitals are so concerned with being sued that there is a trend toward overprescribing medications and over-ordering laboratory tests and procedures.  This, in turn, drives up the cost of healthcare for patients.

Opponents to Limited Liability

On the other side of the debate are those who oppose further limiting medical malpractice liability.  These individuals contend that even the current liability system has a record of well-documented problems, and that the system has long been broken.  The answer, according to this side of the debate, is not to further protect doctors and risk patients, but rather to find a balance that will support healthcare providers and encourage them to provide the best care possible.

Opponents argue that proposed reforms are centered on creating ‘safe harbors’ for doctors whereby any question of medical malpractice would be adjudicated by a tribunal of medical experts, rather than being managed via the court system.  The biggest concerns with such a system are centered around the heart of medical malpractice claims – negligence.

The Negligence Factor

A tribunal system would replace the current standards of evidence for determining medical malpractice with a requirement that the patient proves “gross negligence” occurred.  That would mean proving that misconduct was willful, wanton, or malicious.  One example used to identify such behavior is a case where a surgeon left the operating room while performing surgery to go to the bank.

Currently, plaintiffs in medical malpractice claims must prove that negligence occurred – be it carelessness, an unskilled healthcare provider, miscommunication, medical record errors, etc.  Plaintiffs need only establish that the healthcare provider had a duty of care, and that this duty was breached causing them harm.  If the proposed systems are implemented, patients will be “out of luck” in pursuing medical malpractice claims like these.

Stable, or Unstable? That is the Question

Experts also seem to disagree about the current state of medical malpractice liability and the healthcare system as a whole.  Many argue that the system has stabilized over the past decade, making it an odd time to propose such radical reforms.  With the number of paid claims having been reduced by half in recent years, plus lower liability insurance premium payments, the argument that the system is stabilizing seems legitimate.

There are others, however, who argue that this is the perfect time to pursue reform, as it is better to discuss reform and policy when the system is somewhat stable, rather than in times of crisis.  When the healthcare system is stable and lawmakers are cool-headed, there is a greater likelihood for responsible, productive deliberation.

The Patient Prospective

Experts and lawmakers on both sides of this contentious reform issue agree that reforms need to be fair to healthcare providers and patients.  Secretary Price is known for proposing systems and plans that keep the needs of patients at the “front and center” of the reform.  Experts agree that ongoing medical liability reforms need to take a similar path in keeping patients at the heart of the U.S.  healthcare system.

Unfortunately, the patient prospective is often sidelined by lawmakers focused on reducing the number of medical malpractice claims filed, and the amount of money awarded to patients in these cases.  The reality is that medical malpractice is a serious problem in the U.S.  In 2016, for example, the U.S.  Centers for Disease Control and Prevention (CDC) listed medical errors as the third leading cause of death in the U.S.

The CDC made this classification based on medical errors defined as:

“an unintended act (either of omission or commission) or one that does not achieve its intended outcome, the failure of a planned action to be completed as intended (an error of execution), the use of a wrong plan to achieve an aim (an error of planning, or a deviation from the process of care that may or may not cause harm to the patient”. 

In terms of the patient prospective, with the number of preventable medical errors sky-rocketing, it seems odd that the number of paid medical malpractice claims has dwindled.  This begs the question of whether recent reforms have already shifted toward protecting healthcare providers and leaving patients left with picking up the pieces after being needlessly injured.

Making Sense of the Senseless

If you have been injured due to a medical error, malpractice, or negligence, you may wonder how you can make sense of a situation that seems senseless.  At Brown & Brothers, we work hard to help our clients make sense of their situation and find reasonable, effective avenues to resolution.  Don’t settle for a senseless situation – contact the medical malpractice attorneys you can trust to fight for your rights and justice.

To schedule your free case review, fill out our online form.  One of our attorneys will contact you shortly to discuss your case.

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