National Advisory Council Subcommittee Meeting, October 26, 2009

Medical Liability Reform and Patient Safety

The National Advisory Council for Healthcare Research and Quality provides advice and recommendations to AHRQ's director and to the Secretary of the Department of Health and Human Services (HHS) on priorities for a national health services research agenda.

Notes from the October 26, 2009 meeting of the Patient Safety and Medical Liability Reform National Advisory Council Subcommittee, part of the AHRQ National Advisory Committee.


Agency for Healthcare Research and Quality (AHRQ) Director Carolyn Clancy, MD, opened the meeting by explaining the purpose of the Subcommittee on Patient Safety and Medical Liability Reform Demonstrations, which is to advise the AHRQ National Advisory Council (NAC). She said that while AHRQ may seek expert advice from outside parties, the information it receives must be in the public domain.

More specifically, the subcommittee will

  • Have diverse representation from expert and stakeholder groups.
  • Discuss selected innovations that address medical liability and patient safety.
  • Advise the NAC about specific promising approaches that grant applicants might consider, as well as additional evaluation criteria.

Subcommittee Chair and NAC member Robert S. Galvin, MD, laid out the day's agenda. The AHRQ evaluation criteria that subcommittee members were asked to consider and comment on are:

  • Significance
  • Approach
  • Investigators
  • Environment
  • Collaborative Research Experience
  • Patient Resources
  • Stakeholder Involvement

Subcommittee members then gave brief introductory remarks, providing their affiliation and making general statements about medical liability reform. Throughout the day, an overriding meeting theme was that discussions of medical liability reform should focus on patient safety. Other remarks focused on the need for greater transparency in the system; many subcommittee members believe that the current medical liability system is flawed and does not serve patients or providers well. Members also discussed the need to adequately fund the demonstration projects; the relevance of apologies; the importance of using evidence-based clinical practice guidelines; and the need for more evidence about what works.

Introductory Remarks by Subcommittee Members

Joel Ario, National Association of Insurance Commissioners

  • Patient safety is job number one, and should be the focus of discussion; also, connect patient safety to risk management.
  • The system is inequitable; awards are random.
  • Workers' compensation is fair but can be extremely expensive to manage as an alternative.
  • The most promising set of reforms are those centered on the safe harbor concept, because they line up with patient safety and best practices/risk management issues.
  • He discussed State differences in handling medical liability issues.

Barbara Fildes, CNM, MS, FACNM, nurse midwife, American College of Nurse Midwives

She hopes to bring the nurse midwife perspective to the table, including role development, collaborative practice models, team formation and team performance as it relates to patient safety and professional liability.

Trent Haywood, MD, JD, VHA Inc.

He is looking for transparency in the system to allow for more learning—this will be the biggest criteria he will be trying to understand.

William A. Hazel, Jr., MD, American Medical Association

  • The system is inefficient,unpredictable.
  • AMA supports California's medical liability reform, MICRA, and traditional liability reform, but is open to considering alternatives.
  • AMA's initiative develops clinical performance measures to improve patient outcomes.
  • Must ensure that each grant is adequately funded and enough time is allotted to allow change to occur.

Stephan Landsman, JD, American Bar Association

  • We must get the IOM number (99,000 medical errors) down.
  • What works? Reporting.
  • The Quality Improvement Act of 2005 was a great beginning. These initiatives need to be advanced.
  • Must focus on patient safety.

Timothy B. McDonald, MD, JD, University of Illinois

  • Responding to patient safety incidents—seven pillars—creates reporting system; rapid investigation response system; method for applying apologies; remedies; etc.
  • Longitudinal, 4-year, patient-safety curriculum.
  • Data analysis process that allows us to monitor all we do.
  • Have nearly eliminated frivolous lawsuits at the University of Illinois.
  • Were sued only once using full disclosure, which we advocate.

Nancy Ridley, Betsy Lehman Center for Patient Safety, Massachusetts Department of Health

  • Have worked on a non-regulatory approach to developing evidence-based practices.
  • Have been working on standardizing nomenclature, taxonomy, and methodology, and providing safe harbors, places for people to report.
  • Want to promote patient safety practices we know are evidence-based.

William M. Sage, MD, JD, University of Texas School of Law

  • Talking about a broader set of problems with the liability system.
  • Need to focus on three goals: patient safety—fewer injuries, etc.; improving the process; and, most important, giving doctors confidence to make major changes in how they practice medicine.
  • Want to see payment reform, evidence-based practices, etc.
  • Hopes we don't see the demonstrations as the sum total of malpractice reform.

Albert L. Strunk, JD, MD, FACOG, American College of Obstetricians and Gynecologists (ACOG)

  • New Jersey is a hotbed of medical malpractice activity.
  • We all know the vagaries of the system. OB/GYN is very unique in terms of the cost of liability premiums.
  • Between 17 percent and 20 percent of the cost of doing business is for liability insurance. This affects number of physicians leaving practice.
  • The average age that OB/GYNs leave their practice is 48.
  • ACOG promulgated national and international guidelines.
  • Annual cost of defensive medicine is between $60 billion and $200 billion.
  • Want to realign patient and physician interests, ensure more equitable and speedy compensation for patients, better distinguish between good and bad medical care.
  • The problem with defensive medicine (besides the cost) is that it impairs effective communication among health care providers.

Steven Summer, American Hospital Association (AHA)

  • Chaired AHA task force on liability reform—AHA recommended an administrative compensation system as an alternative to the current system.
  • Want to move the focus away from litigation and toward patient safety .
  • Need to consider this issue under the auspices of health reform in general.
  • Should test a number of different strategies—don't take things off the table yet.
  • We can all agree the current system isn't working well.

Susan C. Waltman, JD, Greater New York Hospital Association

  • AHA offers members a lot of patient safety initiatives.
  • Hospitals come together to create clinical practice guidelines.
  • Health courts, apology, disclosure, clinical practice guidelines, etc.—we should focus on these to improve care and protect doctors.
  • We all know what we need to do. We need better care, better treatment of patients, and better systems. We're looking for some Federal muscle.
  • Health reform should include medical malpractice reform.
  • We may not go as far as we need to with the demonstrations.

Margaret VanAmringe, Joint Commission (for Paul Schyve, MD)

  • JCAHO's main message from its 2005 report (executive summary in meeting binder) is that the medical and legal professions need to work in tandem on this issue.
  • Need to focus on patient safety and its importance in liability reform.
  • Create an injury compensation system that serves the common good; the current system has no equity.
  • There's room for more demonstration projects.
  • Want a system that is more educational than punitive.
  • Patient Safety Organization Act—took 5 years to pass.

Arthur Levin, MPH, Center for Medical Consumers

  • Don't have empirical evidence that someone going to a hospital today is any safer than a patient who went 10 years ago.
  • How do we protect human subjects during this experimentation?
  • Informed consent process, IRB process—need discussion about these things.
  • New York has among the highest insurance premiums in the country.
  • Why does liability get so much attention regarding the issue of reducing health costs?
  • Evidence that anything works is murky at best.

Andrew Warshaw, MD, American College of Surgeons (ACS)

  • NSQIP—first outcomes-based program—outgrowth of VA Surgical Risk Study.
  • Twenty-seven percent decline in post-operative mortality and morbidity.
  • Validated database allowing comparison of outcomes across hospitals.
  • ACS has expanded NSQIP to 250 hospitals.
  • NSQIP helps prevent thousands of surgical complications each year.
  • If Congress funded NSQIP in every State, we'd save $175 to $347 billion over 10 years.

Mary Winter, JD, Bartimus, Frickleton, Robertson and Gorny, PC

  • Has been involved in tort reform debate since the 1970s.
  • Frivolous lawsuits have no place in the system and anything that would deter them is welcomed by all sides.
  • Less than 2 percent of overall health care spending in the United States is on malpractice costs.
  • Tort reform debate won't result in health care savings (very small percentage).
  • Don't want to put burden on patients who have been injured.
  • Debate should be about improving patient safety.

Randall Bovbjerg, JD, Urban Institute

  • Have been actively promoting demonstrations.
  • Three main points: patient care/negligence; how we deal with injured patients; feedback loop to patients.
  • Seem to be out of the zero sum game; have recognition today that some things must change.
  • No one has mentioned physician discipline—need to deal with the bad apples we know are out there.
  • Something that affects legal rights and responsibilities is very, very risky.
  • With big, big reform, you won't find results right away.

Doug Wojcieszak, The Sorry Works! Coalition

  • Disclosure seemed to make the most sense to me for all the players. Don't need a law to bring about this change.
  • Nothing changes a hospital's operation more than disclosure.
  • We try to change the discussion—from making this is a political, legal issue to making it a customer service problem.
  • Anger, not greed, motivates lawsuits.
  • We need a culture change—need training, discussion to bring it about.

David Arkush, Public Citizen's Congress Watch

  • Agrees that the focus needs to be on patient safety. His group did a survey during the summer identifying 10 simple measures physicians and hospitals could take to lower costs and save lives.
  • This issue can become overcomplicated but shouldn't be.
  • Accountability and transparency are usually the answer. Need to make sure cost of errors are internalized to deter misconduct.
  • Need to make sure people have incentives to engage in accountability initiatives.

Richard C. Boothman, JD, University of Michigan Health System

  • Agrees that we shouldn't overcomplicate this issue.
  • Transparency is the linchpin here—it's absolutely key that caregivers and patients are transparent. Take trial lawyers out of the equation.
  • We owe swift and fair compensation if error occurred; if not, we owe the caregiver our support.
  • We need to learn from our mistakes.
  • Trial lawyers find the worst-case scenario and a way to defend it.
  • Need to focus on getting quality and good communication in the system.

Leo Boyle, JD, Past President, American Association for Justice

  • Protecting and preserving the rights of those who have been injured by the medical system is my main concern—to find the truth.
  • To put a normal citizen on a level playing field.
  • No system has been better designed than ours to do these two things.

Ted Clarke, MD, COPIC

  • We should be trying to improve the health care delivery system and make us all better providers.
  • Need to change the culture of medicine to make it safer for doctors and patients.
  • Need to be more accountable.
  • Need to recognize that we'll have differences of opinion.

Helen Darling, National Business Group on Health

  • Very involved in evidence-based benefit design.
  • Without liability reform and physicians feeling comfortable practicing evidence-based medicine, we won't make a dent in what we're trying to achieve.
  • If we don't change the delivery system we're buying into, we won't be able to afford it—we can't afford it now.
  • We can't have safer care, evidence-based medicine unless we have protections, so we have to provide protections.
  • Costs due to poor quality, poor safety, and defensive medicine.

Chip Amoe, JD, MPA, American Society of Anesthesiologists

  • Anesthesia closed claims data project—reviewed closed claims and studied them to determine what when wrong to cause those claims; changed systems and processes based on those findings and published them in the literature; went from 1 in 10,000 anesthesia deaths in the1980s to 1 in more than 200,000 deaths now.
  • We review processes and data to improve patient safety.
  • Need to change patient safety culture.
  • Set up standards and guidelines; complete lack of standards and guidelines across the board.

Gerry Shea, AFL-CIO

  • The AFL-CIO has been clear for the past 15 to 20 years that we should be doing these kinds of experiments.
  • Patient safety legislation was stuck for 8 years over this issue.
  • There are deleterious problems that run deep with this issue.
  • A culture of secrecy has resulted from fear of getting sued.
  • Make sure it's not just the antagonists we've been fighting for years.
  • Let's put real consumers and purchasers in this process.

Michelle Mello, JD, PhD, Harvard School of Public Health

  • Look for solutions that don't require legislation, that reduce costs surrounding settlements and going to trial, and that propose innovative ways to use the treasure trove of data that has been collected to improve patient safety.

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Overview by Dr. Clancy

Following the introduction of subcommittee members, Dr. Clancy thanked them for attending the meeting on such short notice. She presented information about AHRQ and the Medical Liability Demonstration Project, the largest project related to patient safety and medical liability reform since the 1980s New York study.

She said AHRQ's mission has changed from being strictly research-focused to also focusing on improving the quality, safety, efficiency, and effectiveness of health care. AHRQ has begun supporting work on ambulatory care, which includes transitions from hospitals to other settings. The Agency's priorities include:

  • Patient safety
  • Effective health care program
  • Ambulatory patient safety
  • Medical expenditure panel surveys
  • Other research and dissemination activities

2008 National Health Care Quality Report

Dr. Clancy highlighted the report's key themes:

  • Health care quality is suboptimal and improves at a slow pace (1.8 percent annually for core measures and 1.4 percent for all measures).
  • Reporting of hospital quality is spurring improvement but patient safety is lagging.
  • Although health care quality measurement is evolving, much work remains.

She said that it is hard to know whether hospital care is better now than 10 years ago because we do not have good patient safety measurements due to fear and emotion. Fear is a very potent factor in perpetuating a culture of secrecy.

Demonstration Goals

Dr. Clancy reviewed the history and roadmap for the medical liability reform demonstration projects, which President Obama announced on September 9. The demonstrations are to help States and health care systems test models that:

  • Put patient safety first and work to reduce preventable injuries, while also reducing the incidence of frivolous lawsuits.
  • Foster better communication between doctors and patients .
  • Ensure that patients are compensated in a fair and timely manner for medical injuries.
  • Reduce liability premiums.

The three-pronged initiative includes:

  • $21 million for grants to States and health systems to implement and evaluate evidence-based patient safety and medical liability demonstrations. Each grant may total up to $3 million over the 3-year project period.
  • $4 million for planning grants. Each planning grant may total up to $300,000 over 1 year.
  • A quick and comprehensive review of initiatives that improve health care quality and reduce liability. The completion deadline for the review is December 2009.

The deadline for submitting grant applications is January 27, 2010. AHRQ will hold a technical assistance (TA) conference call for interested applicants on November 12. The TA information will be posted online for those unable to participate in the call. Dr. Clancy said the number of calls regarding the grants so far indicates a great deal of interest.

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Guest Presentations

Dr. Clancy's overview was followed by four ten-minute presentations:

Maryland's Three-Pronged Approach to Patient Safety

John M. Colmers, Secretary, Maryland Department of Health and Mental Hygiene

Mr. Colmers said Maryland, which has had an all payers rate-setting system for more than 30 years, has a long history of hospital-reported data. He outlined the State's three-pronged approach to patient safety, which includes:

  • Mandatory reporting of adverse events resulting in death or serious disability (lasting more than seven days) by hospitals, nursing homes, and potentially other licensed facilities.
  • Provider education and voluntary reporting of de-identified information on adverse events and near misses by the same facilities.
  • The use of data systems and advanced technologies to improve care, as well as Pay for Performance.

Maryland hospitals reported 182 adverse events in fiscal year 2008, up from 19 in fiscal 2004. Colmers said the number of reported adverse events continues to increase each year as hospitals become more familiar with the reporting requirements.

The Maryland Patient Safety Center, which oversees the institutions' voluntary reporting activities, was started by the State and the Maryland Hospital Association and is funded with public and private dollars. The center promotes quality improvements above and beyond patient safety.

Colmers said the State's rate-setting system puts Maryland in a unique position to create a pay-for-performance program and improve quality and lower costs when compared to the rest of the nation. Other unique initiatives adopted or underway include:

  • Initiation of payment-linked "Value-Based Purchasing" in 2008 using process measures.
  • A "Hospital Acquired Conditions" (HACs) Project, in 2009 (much broader than the Center for Medicare and Medicaid Services' HACs project).
  • A very broad link to payment to reduce preventable readmissions.

Identifying and Intervening with High-Risk Physicians

Gerald B. Hickson, MD, Director, Center for Patient and Professional Advocacy, Vanderbilt University Medical Center

Dr. Hickson identified a model for identifying and intervening with physicians at high risk of being sued. According to Dr. Hickson, unsolicited patient complaints are linked to malpractice risk and can be a powerful tool for identifying physicians at high risk for a lawsuit. Malpractice suits are not randomly distributed. A small number of doctors are affected—about 5 percent to 8 percent of doctors account for about one-third of unsolicited complaint reports and have higher than predicted suit experience.

  • Predictors of risk outcomes include gender, physician specialty, volume of service, and unsolicited patient complaints.

Dr. Hickson identified factors that have contributed to reducing claims:

  • Environment and systems interventions (tort reform).
  • Targeted interventions on physicians identified as high-risk. (While pilot results have shown targeted interventions on high-risk physicians to be effective, pilot results have to be confirmed with a larger demonstration effort).
  • Safety initiatives, such as disclosure training, early event reporting, safety culture surveys, and the adoption of safe practices.

According to Dr. Hickson, high-risk physicians are often unaware of their risk, and most will respond positively if patient complaints are reliably processed and regularly communicated through a physician-driven (peer) feedback process.

Dr. Hickson said physicians should become self-regulating. Medical groups, hospitals, and others must all come together to make this process work—the devil will be in creating the partnerships because they require a lot of trust.

Patient Safety

Scott Young, MD, Senior Medical Director and Co-Executive Director, Care Management Institute, Kaiser Permanente

Dr. Young provided an overview of Kaiser's patient safety initiatives. He said leadership commitment combined with a culture of safety are the foundation of Kaiser's patient safety program. Kaiser has six safety themes:

  • Safe Patients—Engage patients and their families in reducing medical errors so that they can actively participate in their own safe care.
  • Safe Place—Design, construct, operate, and maintain a safe environment of care.
  • Safe Staff—Ensure that staff has the knowledge and competence to safely perform required duties and improve system safety performance.
  • Safe Care—Ensure that actual and potential hazards associated with high-risk procedures, processes, and patient care populations are identified, assessed, and controlled in a way that shows continuous improvement.
  • Safe Culture—Create and maintain a strong, unified, safety culture with patient safety and error reduction embraced as shared organizational values.
  • Safe Support Systems—Identify, implement, and maintain support systems that provide the right information to the right people at the right time.

Harm prevention is a key component of Kaiser's patient safety program, according to Dr. Young. Example programs include Perinatal Patient Safety, Highly Reliable Surgical Teams, Diagnostic Reliability, Reliable ED/Emergency Medicine Risk Initiative, Simulation-Based Education, Trigger Tools, High-Alert Medication, and Infection Control.

The smart use of health information technology systems is also important for improving patient safety. Examples of these include personal health records, coordinated care for chronic conditions, improved diagnosis and disease management, automated reminders and alerts, and data and analytics.

Finally, Kaiser strives to do the right things the right way and to make the right things easier. These include defining evidence-based medicine, identifying successful practices, and leveraging measurement to guide performance improvement.

A Consumer Perspective

Sue Sheridan, MIM, MBA, President, Consumers Advancing Patient Safety

Ms. Sheridan described how she lost her husband and has a special-needs child as a result of medical errors. She said that, in both cases, the medical errors were not disclosed to the family.

Ms. Sheridan said it is unfortunate that victims of medical errors are often characterized as greedy because they sue. Sometimes the lawsuit results from a need to pay for health care that resulted from the medical error. She said nobody wins in medical malpractice cases.

Some of Ms. Sheridan's recommendations for subcommittee members and policymakers to consider included to

  • Think beyond the status quo.
  • Dismantle the current tort system.
  • Recreate and co-create a medical liability system that is reliable, safe, and just for all.
  • Inject a sense of urgency into the process so future medical errors could be avoided.
  • Use demonstrations to incentivize transparency and equality .
  • Eliminate gag clauses.
  • Think about medical safety outside hospitals as well as inside.

Ms. Sheridan said she hopes the demonstration projects can eliminate the "dance" that patients and providers have to endure in medical liability cases.

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Subcommittee Discussion

After the four presentations, Dr. Galvin reviewed the evaluation criteria and invited subcommittee discussion and comments. Following lunch, subcommittee members heard public comments (see attachment) and made comments and observations of their own.

Panel member comments addressed the following topics:

  • Funding the infrastructure for gathering more clinical data; having peer intervention backed by evidence; using evidence to show we need to do things differently on the treatment side; having subcommittee members all agree on what works as a gauge for demonstration proposals (Amoe and others).
  • Having a large enough database to glean evidence from (Warshaw).
  • Designating grant money for organizations to do risk analysis; would like to know where the next "serious event" is going to come from (VanAmringe).
  • How to capture the "near misses" (Wojcieszak).
  • Rapid testing and implementation phase—should test something for 18 months and then implement on a larger scale in order to operationalize it (Smarr).
  • Gathering information about the current patient safety portfolio, rather than trying to reinvent it (Levin).
  • Focusing on demonstrations that accelerate, rather than slow, the tort process (Sage).
  • The need for ongoing, frequent coordination of grants so people are collaborating from Day One, rather than working in silos (Ridley).
  • That people applying for the grants are not academics and may not be experienced grant writers, but the RFP language is academic/research-focused; these people might need help writing proposals (Wojcieszak); people are overwhelmed by the RFP demands; should use TA call to help people understand the political and scientific aspects of writing a grant proposal (Mello).
  • Inadequate funding for the demonstrations (Malone, McDonald, others).
  • Focusing on demonstrations with substantial implications for a large number of patients across the U.S.(Malone).
  • Ensuring that proposals have both medical liability and patient safety components (several members); concern over excluding a strong medical liability proposal because it doesn't have a strongly enough developed patient safety component (Mello).
  • Ensuring respect for patients through early and full disclosure of medical errors.
  • Incorporating as many diverse ideas and models as possible (Summer).
  • Including incentives relating to transparency (Sheridan, others).
  • Including (McDonald, Hazel) or excluding (Mello) proposals that require legislation.
  • That the potential of Patient Safety Organizations (PSOs) should be stressed more vigorously—whether they are achieving their goal, expanding them from hospitals only to also include practitioners' offices (Ridley).
  • Identifying and replicating what's already working (Mello, Bovbjerg, Ario, others); don't exclude things that are already out there; they may not have been thoroughly tested, evaluated .
  • Identifying and defining all providers involved in the process, not just physicians (Fildes).
  • Fast-tracking some of the proposals by tying them to health reform legislation (Shea).
  • Inadequacy of "I'm sorry" legislation to adequately address the medical liability problem, considering all options, including health courts, early offers of recovery, etc. (Strunk).
  • The need to consider two levels of solutions—the simpler, short-term fixes and the more involved, long-term (changing existing culture) needs; simple fixes (disclosure, apology) can have an effect on whether you get sued (Waltman).
  • "Rules of the road" for the demonstrations and what the public should know about them (Levin).
  • The role of insurance companies (Ario, Winter); grant language isn't written for those who typically would not apply for grants—materials might not be comprehensible to them; short and simple are better than long and complicated; identify what works and replicate (Ario).
  • Creating a voluntary system where patients are given honest disclosure and not forced into a system they don't want to be in (Ario).
  • The impact of demonstrations on an individual versus their impact on society.
  • How to handle issues surrounding the National Practitioner Data Bank (Malone).
  • (Haywood) AHRQ would benefit from demonstrations that address both individual patient safety issues as well as systems patient safety issues. Projects that focus on individuals could include: prevention of incident, activities at time of incident, remedial actions after an incident transpired. Currently, the focus seems to be on individual incidents with individual actors associated with the relevant incidents. There may be projects that treat patient safety as an issue for the larger community and do not limit the focus to the individual actors.

Dr. Galvin provided some observations and questions in recapping comments from the subcommittee discussions:

  • A feedback loop for ways to improve the system is really lacking.
  • The need for evidence came through as being very important (from a large enough data set so that you know what's really working and what's not).
  • What will NAC get from these demonstrations? Will we just be adding to our knowledge or will change result? Will groups be involved in any kind of learning system?
  • Are the demonstrations something pure researchers are going to do? (Answer: No.) What about the broader stakeholders (e.g., insurance companies, insurance commissioners, consumers)?
  • Will changes the grants create be scalable to different States?
  • Some existing ideas are great but the money hasn't been there to test or evaluate them. These shouldn't be overlooked.

In wrapping up, Dr. Clancy remarked that the subcommittee and public provided a lot of detailed and granular feedback. She said she thought the planning grants will be fertile soil for ground-breaking ideas. Dr. Clancy thanked the subcommittee for attending and told them that a meeting summary would be forthcoming.

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Public Comments

Michael Duenas, American Optometric Association

Duenas recommended that the subcommittee consider

  • Broadening consensus panels that develop clinical practice guidelines to include a mix of providers and public representatives.
  • Broadening content areas to capture and integrate with a variety of associated interdisciplinary clinical concerns.
  • Incorporating and integrating "decision support" technologies to help health care providers in daily practice, including real time Internet-based postings of reminders with consistently updated rationale and references.
  • Integrating content into usable HIT systems tied to data collection and outcomes evaluation.

Janet Corcoran, Common Good

Common Good recommended the subcommittee consider health courts as a medical liability reform option. The organization has been working with the Harvard School of Public Health to design a system of special health courts. The health court system would have

  • Trained judges with expertise in medical issues who issue written opinions.
  • Neutral experts who serve the tribunal rather than the interests of a particular party.
  • A simpler standard for recovery based on errors or circumstances that should not have occurred.
  • Evidence-based guidelines to aid decision making.
  • Full compensation of economic damages.
  • A payment schedule for noneconomic damages based on type of injury.
  • A coordinated patient safety process to collect and disseminate information on errors to doctors, patients, and the court.

According to Common Good, health courts would lessen the time it would take to resolve a claim and the amount of an award currently wasted on fees and costs; create equity among similarly injured patients; establish reliability so doctors can focus on treating patients and not on avoiding lawsuits; foster transparency needed to advance patient safety; and establish a culture where resolving medical liability disputes is a process to compensate injured patients and learn from mistakes, not one for recrimination.

Elaine Brightwater, New Mexico

Nurse midwives attend 38 percent of vaginal deliveries, most of which are funded by Medicaid or not at all. Her group is charged with how to deal with medical liability and patient safety. New Mexico is a naturally-occurring pilot model. Her group will apply for a grant and is working together with ACOG, the New Mexico Hospital Association, and other organizations.

William Oetgen, American College of Cardiology (ACC)

The ACC has been involved in the following initiatives:

  • Creating the Quality First Campaign to reduce legal and defensive medicine costs, promote clinical comparative effectiveness, and focus on projected workforce issues.
  • Developing clinical statements and guidelines to diagnose and manage patients.
  • Developing evidence-based, appropriate use criteria, which measure variability and look at utilization patterns.
  • Reviewing medical liability claims data from the past 22 years to detect trends in closed medical professional liability claims that may reflect avoidable patterns of clinical errors.
  • Launching an outpatient registry to measure and quantify outcomes and identify gaps in delivering quality care.

The ACC urged AHRQ to strongly consider funding pilots that encourage improved communication among doctors, patients, and their families.

Nancy Taylor, U.S. Chamber of Commerce Institute for Legal Reform

Institute recommendations included

  • Adding more money to the demonstration projects—$25 million is not enough to test and expand alternative methods of dispute resolution.
  • Considering California's and Texas' reforms. (California's Medical Injury Compensation Reform Act placed a $250,000 cap on non-economic damages in medical malpractice lawsuits and limits on attorney contingency fees. Texas' law placed a $250,000 limit on noneconomic damages against doctors and health care providers and an overall cap of $500,000 against health care facilities.)
  • Considering the direct and indirect costs of medical liability, particularly the indirect costs of defensive medicine.
  • Making grants promoting alternative methods of dispute resolution require that the right of action created under the demonstration project be the exclusive remedy for all claims falling within the project's scope of jurisdiction.
  • Targeting grants toward States with medical liability laws most in need of pro-patient reforms.

The Institute also recommended that decisions to award demonstration projects include input from practicing doctors with knowledge of the medical profession's established standards of care, other health care providers and organizations; medical malpractice insurers; State officials; and patient safety experts. In addition, demonstration projects should not undermine State reforms enacted to provide alternative means of resolving medical liability or other types of tort liability claims.

Joanne Doroshow, Center for Justice and Democracy

HHS is looking at proposals that could limit or eliminate the right to trial by jury for anyone injured by medical malpractice. The Center strongly opposes being denied the right to go before an unbiased judge and jury.

Ethan Cash, National Center for Technology and Dispute Resolution, University of Massachusetts, Amherst

We need to pay attention to software and electronic systems to allow people a chance to respond. The more that technology is used and the more complex it is, the more disputes will arise.

Rosemary Gibson, Massachusetts Medical Society

The Society recommended adding patient safety as explicit evaluation criteria. The Society hopes the demonstration projects will have as goals telling patients the truth; and reducing claims, premiums, and liability.

The Society had the following questions related to grant proposals:

  • Can we apply for both the planning grant and the demonstration projects grant?
  • How is the medical society eligible for the grants?
  • Can the Society act as the PI when partnering with a health system or State?
  • Can the Society act as a co-PI when partnering with a health system or State?
  • Who are the best grant partners?
  • What criteria are being looked at for the grants?

Didn't give name (told story about pregnant wife getting meningitis)
Subcommittee recommendations should include support for:

  • Alternative dispute resolution
  • multi-State demonstration projects (The speaker didn't know if there currently are enough dollars for multi-State grants.)
  • More minority representation
  • Giving strong consideration to grants that are proactive (rather than always waiting for patients to complain).

Louise Ryan, National Citizens' Coalition for Nursing Home Reform (NCCNHR)

NCCNHR recommended having long-term care patients represented at the table. Younger patients are represented but not those at the other end of the spectrum. Many medical errors occur in nursing homes.

Alfred Jordan, Transparency LLC

Significant reductions in malpractice claims against doctors would occur if the ERISA preemption for insurers were eliminated, permitting lawsuits directly against insurers. In addition, the bar would be raised against frivolous lawsuits if there was meaningful tort reform that placed the burden of proof on overzealous plaintiffs' lawyers, requiring that they pay for legal expenses directly for both sides of a controversy, should they lose their case.

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Current as of November 2009
Internet Citation: National Advisory Council Subcommittee Meeting, October 26, 2009: Medical Liability Reform and Patient Safety. November 2009. Agency for Healthcare Research and Quality, Rockville, MD. http://www.ahrq.gov/professionals/quality-patient-safety/patient-safety-resources/resources/liability/medliabnotes.html