- A recently enacted law in Massachusetts, MA 2012 Payment Reform Legislation, tries to preempt malpractice litigation by establishing a process and timeframe for discussing mistakes.
- The legislation requires that patients provide hospitals with six months notice if they intend to sue. The hospital then has 150 days to respond. In one instance, a Massachusetts hospital missed an ovarian cancer diagnosis, despite noticing a suspicious mass during a CT performed for a different illness. When the patient was diagnosed months later with stage 3 ovarian cancer, she notified the hospital of the mistake and the harm it had caused her. Within 150 days, the hospital determined their actions fell short of care standards. The patient's physician apologized and she accepted a financial settlement from the hospital.
- Normally, this type of medical mistake could spur a protracted malpractice lawsuit. Instead, it took just a year to resolve. "My client felt really good about it," said the patient's lawyer. "She felt like she was heard."
Medical malpractice is one of the biggest stressors for physicians and big hospitals, sometimes pushing talented physicians out of the field. As Kaiser Health News notes, shortly after the Affordable Care Act passed, the Obama administration awarded $23 million in planning and demonstration grants around the country as part of a patient safety and medical liability reform initiative. Many state reforms have revolved around controversial cap initiatives. In California, the state Supreme Court announced last month that it will hear Hughes v. Pham, the case challenging the constitutionality of the state damages cap of $250,000 in medical malpractice suits.
These kinds of reforms rely on the tired "deny and defend" model, instead of communication and resolution programs, which are gaining popularity amongst both consumers and hospitals. And they seem to be working: Massachusetts' reform is based on a University of Michigan program that has reduced average monthly new claims and average monthly lawsuits since 2010, as well as cutting legal costs and dispute resolution time.
But there's a bigger indirect cost caused by malpractice suits. The practice of defensive medicine is part of the reason healthcare costs so much to consumers—studies have estimated that nearly $210 billion a year is spent on defensive medicine that is motivated by malpractice fears. Communication and resolution programs seem to be helping make negotiations between consumers and healthcare organizations more organized and civil, but are they helping to reduce the costly practice of defensive medicine?
Maybe not. A study in the New England Journal of Medicine, published in October, looked at emergency room physicians in three states and found that malpractice reform laws had no effect on doctors' use of defensive medicine. The RAND Corporation studied physician habits in Texas, South Carolina and Georgia—all states that raised malpractice standards. Physicians continued to order expensive, and often unnecessary, tests in all three states, though there was a minor drop in charges in Georgia. The study authors looked at the rate of charges, the use of advanced imaging, and hospital admission before and after legislation was passed.