Over the past few years, progress has clearly been made with regard to the professional liability crisis. Between 2002 and 2013 the rate of paid claims per 1000 physicians fell from 18.6 to 9.9, an average decrease of 6.3% per year.1 Moreover, since 2007 median indemnity amounts paid have fallen and high-end awards have plateaued. Overall professional liability insurance rates have stabilized. This salutary state primarily reflects the improving economy and stock market valuations coupled with modest state-based reforms, but implementation of a wide range of patient safety programs has likely also had an impact. The Agency for Healthcare Research and Quality (AHRQ) Patient Safety and Medical Liability Demonstration Program has suggested such a linkage, particularly in obstetrical claims.2 Pettker and associates compared obstetrical liability claims at a single tertiary-care teaching hospital during 2 5-year periods (1998 to 2002 and 2003 to 2007), before and after implementing a rigorous patient safety program.3 Despite a stable statewide malpractice insurance market, this patient safety initiative resulted in a decline in median annual claims (1.31 to 0.64; P = 0.02), median annual payments per 1000 deliveries ($1,141,638 to $63,470; P < 0.01) and the median payout per case ($632,262 vs $216,815; P < 0.05).
Ob/gyns still feeling the pain
While these overall trends are reassuring, for ob/gyns professional liability insurance premiums costs continue to climb, albeit more modestly than a decade ago.1 But even more concerning, our medical liability crisis continues to contribute to burnout and adverse practice patterns. The 2015 American Congress of Obstetricians and Gynecologists (ACOG) Survey on Professional Liability noted multiple disturbing trends.4 Of the survey’s nearly 4300 respondents, 23.8% reported that fear of malpractice litigation had forced them to reduce numbers of high-risk obstetrical patients; 17.0% posited that it had increased their cesarean delivery rate; 13.6% had stopped offering trials of labor for vaginal birth after cesarean (VBAC); and 5.1% had stopped their obstetrics practice altogether. An astonishing 73.6% of ob/gyn respondents (average age 51.4 years) had experienced at least 1 liability claim during their career and the group averaged 2.59 claims per physician. Since the last ACOG liability climate survey in 2012, 40.5% had experienced 1 or more claims, two-thirds being obstetrical in origin, most often for neurological injury.
While survey data can be subject to selection bias, there is strong empirical evidence that intimidation caused by the potential for malpractice litigation increases cesarean delivery and lowers VBAC rates. Yang and colleagues examined US National Center for Health Statistics birth certificate data from 1991 to 2003 to correlate cesarean delivery and VBAC rates with malpractice pressure as measured by liability insurance premium costs and presence or absence of state-based tort reform.5 They observed that malpractice premiums were positively associated with primary cesarean delivery rates (beta = 0.16, P = 0.009), and negatively associated with VBAC rates (beta = -0.35, P = 0.01). They calculated that for every $10,000 decrease in premiums there would be a 1.45% increase in the VBAC rate and a 1.18% decrease in primary cesarean delivery rates. In addition, they observed that VBAC rates were significantly higher and primary cesarean delivery rates were significantly lower after individual states placed caps on noneconomic damages, with the greatest effects seen when caps were set at $250,000 or less.
Limits of state-based reforms
Driven by cost concerns and pressure from organized medicine, and commensurate with Republicans gaining control of the majority of state legislatures and governorships, a growing number of states have implemented tort reform including such caps on non-economic damage. For example, Iowa’s Governor Terry Branstad recently signed a law mandating certificates of merit, strengthening expert witness standards, and capping non-economic damages at $250,000.6 Indeed, 35 states have now implemented some form of cap on non-economic damages.
These wins at the state level, however, can be ephemeral as recently demonstrated in my home state of Florida. There, the Supreme Court recently ruled unconstitutional a law limiting non-economic damages in medical malpractice cases.7 Sadly this law, passed in 2003 while Jeb Bush was governor, had greatly helped stabilized what was one of the severest professional liability insurance crises in the nation. Ironically, it was the law’s very success that led to the judges’ decision. The majority opinion read in part, “We further conclude that because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps … and alleviating this purported crisis.”7
The limits of state based-reforms, ascendency of the GOP over all 3 branches of the federal government and the pressing need to contain costs in the Republican healthcare reform plan have all led to renewed hopes for a federal solution to our long twilight struggle against a patently unjust, inequitable, and fundamentally flawed tort system.