Health Law Expert on the Current State of Medical Malpractice: a Q&A

As US citizens continue to adjust to the changing political landscape, many in the medical field are wondering whether now may be the right time for medical malpractice reform.

As US citizens continue to adjust to the changing political landscape, many in the medical field are wondering whether now may be the right time for medical malpractice reform.

A recent perspective published in the New England Journal of Medicine highlighted reform as a real possibility, even as the current malpractice environment remains stable.1

In an interview with Endocrinology Advisor, Michelle M. Mello, JD, PhD, of Stanford Law School and Stanford University School of Medicine in California, and one of the authors of the perspective, discussed the key issues surrounding medical liability, and why now is the right time to address malpractice reform in a meaningful fashion.


Endocrinology Advisor: Can you briefly describe the current state of medical liability in the United States?

Dr Mello: Providers and physicians pretty much universally agree that medical liability is burdensome, drives up healthcare costs, and makes their lives unpleasant. Empirically, there are variations across states in terms of how big the [pressure of the] liability environment is. However, providers tend not to see it that way; they see medical liability as a uniform and ongoing burden.

Endocrinology Advisor: In your opinion, does the current litigation process favor one group (ie, patient or practitioner) over the other?

Dr Mello: There are aspects of the process that are unpleasant and arguably unfair to both sides. I do not think the outcomes systematically favor one group over the other. However, when you talk about the broader group of people who have been hurt by malpractice and would like to bring litigation, the system very much disadvantages them, because most will never be able to find an attorney and bring a claim.

Endocrinology Advisor: What are your thoughts on physicians practicing “defensive medicine” in response to the current malpractice climate?

Dr Mello: Defensive medicine is a practice that pretty much everyone agrees goes on a lot; however, it is hard to quantify. Our best estimate is that it contributes $45 billion dollars a year to the national healthcare bill, which is not a small amount of money. On the other hand, it is a small amount when compared [with] overall healthcare spending.

Endocrinology Advisor: What specific aspects of medical malpractice litigation need to be reformed?

Dr Mello: There are several aspects. First, it is incredibly expensive. The amount we spend on overhead costs is about 55¢ on the dollar. The second problem is the system is very hard to access for people who are injured by negligence because it requires attorney representation, and attorneys only work on contingency fees. The third problem is the imprecision [of] the system. Although there are many people who are never compensated for their injuries, there are also many cases that do not appear to be meritorious that [do] garner compensation, which can be hard to avoid under the current rules. The fourth problem is that it is a very lengthy [process]. On average, it takes about 3 years for an injury to work its way through the system, and that leaves both patients and providers under a cloud for a very long time, which can be quite destructive for everyone involved.

Endocrinology Advisor: Can you elaborate on how changes would benefit both practitioner and patient?

Dr Mello: If we can refine our processes of resolving incidents at an early stage, everybody benefits. In fact, some institutions have adopted approaches in which they acknowledge error and provide compensation without requiring the patient to sue. This offers a number of benefits for the institution in terms of cost control, and the patient and the doctor involved in terms of enabling them to reconcile and move on with their lives.

The other thing that is we rely on an adversarial system instead of an administrative compensation system. We require people who have already been through a traumatic event to go through another traumatic event with a protracted lawsuit. Neither side wants to engage in that [process], just as nobody wants to pay an attorney 30% [of the settlement] or an insurance company a huge amount of overhead. It is in everybody’s interest to develop more efficient ways of dealing with claims, [most] likely [methods] that rely less on juries than they do currently.

Endocrinology Advisor: What are the largest legal barriers to medical liability reform?

Dr Mello: At the public law level, reform has emerged as a very partisan issue. A possible explanation for this is proposals tend to heavily favor healthcare providers and have an overall lack of balance in their consideration of what patients may need. Moving forward, we need to return to ideas that are win-win, resulting in lower costs to providers while also offering benefits to patients.

Endocrinology Advisor: Why is now the right time to amend medical malpractice litigation?

Dr Mello: If you examine insurance premiums, you [can] see that they cycle and spike every 15 years or so. This, of course, upsets physicians, whose demand is then not for fixing the system, but [for] lowering their costs quickly. And the problems are much more complicated than that. Because of this, the time [for] a thoughtful conversation about malpractice reform is when people are not in a crisis state, which is now.

Endocrinology Advisor: In the current political climate, how should the issue of malpractice reform move forward?

Dr Mello: I continue to favor state-based solutions. Malpractice has always been a state law issue. It has been extraordinarily rare for the federal government to get involved [in malpractice suits]. However, when Congress takes up the issue, it can serve as a lightning rod for states to get things done that Congress cannot. If we are to move forward with federal legislation, I favor approaches that facilitate alternative dispute resolutions and other avenues for dealing with incidents that do not rely on adversarial litigation and are not as one-sided as the current Republican proposals. There has to be a willingness to revise the processes outlined in the proposals, so that they more fairly balance the interests of patients and providers.

Disclosures: Dr. Mello reports receiving grants from SUMIT Insurance Company Ltd.

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  1. Mello MM, Kachalia A, Studdert DM. Medical liability — prospects for federal reform [published online March 29, 2017]. N Engl J Med. doi:10.1056/nejmp1701174

This article originally appeared on Endocrinology Advisor