Capping the Cap Discussion

Alternate Solutions For Rising Medical Malpractice Insurance Premiums

Patient Safety and Alternative Dispute Resolution

Written by:
Christopher Smith, Medical Student
University of Nebraska Medical Center

Edited by:
Chris McCoy, AMSA Legislative Affairs Director 2005-06

Index:

Introduction: What is Malpractice?
Patient Safety
Failure of the Tort System
Caps on Malpractice Damages
No Fault Insurance
Mediation
Arbitration
Screening Panels
Conclusion
References

Introduction:

In the past decade there has been a significant surge in medical malpractice premiums in various states and medical specialty areas. The resulting impact on the medical profession has been widely reported, as physicians in several states have conducted strikes, reported early retirements, and limited certain high-risk procedures, while some hospital services have been temporarily closed. Many fear patient access to services such as obstetrics and trauma surgery may become greatly limited if action is not taken. Largely through the legislative lobbying action of physician organizations, such as the American Medical Association (AMA), medical malpractice reform has become a prominent issue on the state and federal levels of government.

But is there really a medical malpractice crisis, and, if so, what is the best remedy? While stories of physician strikes and limitations on certain hospital services have made the headlines, the effects of increasing malpractice premiums are still a point of contention. Furthermore, the current focus on establishing award “caps” to limit claim frequency and severity is a seemingly simple solution to deal with the complex causes of increasing premiums. Perhaps it is too simple. Insurance cycles, reserve fund mismanagement, reinsurance costs, medical care inflation, and other issues have also led to increased malpractice costs. Furthermore, variations in state tort reforms and limited empirical evidence have led to conflicting and inconclusive analysis of the available data. Capping medical liability awards may also unfairly limit patient compensation without addressing systematic problems within the insurance and healthcare fields.

Such a complex problem requires creative and comprehensive solutions that go beyond the narrow mantra of cap reform. This paper looks alternate methods of medical malpractice reform, including arguments for and against, and an analysis of available empirical data. Specifically we will address patient safety reform, no-fault insurance arbitration/mediation, mediation, arbitration, and pre-trial screening panels.

What is Medical Malpractice?

Malpractice is an act of professional incompetence that results in harm to a client/patient. This includes wrongful action and acts of omission. The structure of medical malpractice law has its roots in English common law (i.e. those established by court precedents). It has only been in the past 30 years, with repeated malpractice crises, that legislative intervention has occurred [1,2].

Malpractice is under the broader category of negligence, which is itself under the umbrella of tort law. A tort is a wrongful act, intentional or accidental, which causes injury to another. In addition to malpractice, tort law includes product liability, automobile accidents, fraud, defamation, and some intentional crimes such as assault and batter. Negligence is committing an act that a reasonable person would not do or failing to commit an act that a reasonable person would do in similar circumstances [2].

To win a medical malpractice case, the plaintiff must a) show they were under the medical care of the defending physician b) prove negligence and c) prove the negligence caused their injury. If the plaintiff is successful, the next step is determining the amount of monetary compensation [1]. This is divided into economic and non-economic awards. Economic awards are based on out-of-pocket expenses, including lost wages and medical expenses. Non-economic, the focus of most tort reform legislation, include pain and suffering awards. Punitive damages, those meant to inflict punishment on the defendant, are sometimes included in non-economic awards. Although economic awards make up the bulk of malpractice damages, non-economic awards introduce unpredictability into malpractice suits. As discussed below, putting monetary value on abstract notions such as pain and suffering is difficult to standardize. The same injury can result in grossly different award decisions on a state-by-state and jury-by-jury basis [3].

The Problem

The current medical malpractice crisis is the result of increasing liability insurance premiums experienced by certain segments of the medical community. In a 2003 report the General Accounting Office (GAO) examined seven representative states and found that premiums increased significantly from 1999-2003. However, there was great fluctuation depending on specialty area, state, and geographic region within a state. While some states saw modest premium increases of 2-21% (in line with an average consumer price index (CPI) increase of 10% and medical CPI increase of 18%) others saw increases upwards of 165% [4]. Between 2000 and 2002 there was an average nation-wide increase on malpractice premiums of 15% [5].

Complex Causes

The 2003 GAO report found that the primary cause of higher malpractice premiums was an increase in claim losses suffered by insurance companies. There are two measures of claim losses, both of which saw steep increases in the late 1990’s. Paid losses are the payments made by a company during the year, regardless of when the claim was initially made. Paid losses can influence the second measure of malpractice claim loss, incurred losses. Incurred losses are the estimated losses a company expects based on claims filed during that year. Since malpractice premiums are based on expected costs, incurred losses are the biggest factor influencing malpractice premiums. The average incurred loss rate saw an increase of nearly 20% from 1998-2001, although there was great variability between states [4].

These increased losses reflect recent trends showing a large increase in the total amount of malpractice claims paid in the past decade. Claims payments account for two-thirds of malpractice insurance providers’ costs and have been steadily increasing at approximately twice the rate of general inflation [5]. Between 1991 and 2003 total claim payments increased from $2 billion to approximately $4 billion. During this time the number of malpractice suits remained steady, but the average payment per claim doubled to $300,000. Similarly, defense costs for malpractice claims also doubled during this time [1, 5].

Increasing malpractice claim payments are not the only reason for increasing premium rates. Insurance cycles – transitioning between “soft” and “hard” markets - must also be considered. A “soft” market occurs when high investment returns are expected and payment reserves for future losses are high. Soft markets result in decreased premiums as companies attempt to increase their market share, relying on high investment returns to cover any losses from liability underwriting. A 1% return on investment results in an average decrease in premiums of 2-4% [6]. “Hard” markets are just the opposite. Low prospective investment returns result in higher premiums to cover expected costs. The late 1990’s saw a shift from a “soft” to “hard insurance market, with an accompanying jump in premiums. Furthermore, the insurance industry has admitted that premiums were kept artificially low during the previous decade through cash flow manipulation, further exacerbating the current malpractice crisis [5-8].          

Additional factors have also impacted malpractice insurance premiums. With the transition from a “soft” to “hard” market, many insurance companies became insolvent or stopped providing malpractice coverage. With less market competition came higher premiums [4-6]. Additionally, reinsurance prices have also increased, reflected increased malpractice payouts and losses experience because of the 9-11 attacks [4]. Meanwhile, the continued rise in healthcare inflation has also impacted premium rates [3, 8]. When adjusted for medical care inflation, the average malpractice claim payment rose only 22% from 1991-2003, compared to a total increase of 110% [1].

The Consequences:

The impact of growing malpractice premiums is unclear. While the AMA insists that doctor walk-outs, early retirement, declining willingness to perform high-risk procedures, and hospital closings pose an imminent threat to healthcare access [9], a 2003 GAO study found that “provider actions were not substantiated or did not affect access to health care on a widespread basis” [10]. In fact, the number of physicians in the United States has increased by 30% over the past decade [1]. However, even anecdotal evidence of limited access to care should be taken seriously, as it may point to larger problems on the horizon [11].

There is also a fear that the risk of malpractice claims is leading many doctors to practice defensive medicine. Fear of future litigation may be motivating physicians to order unnecessary test and procedures. Overall, however, research on the practice of defensive medicine is mixed. The AMA reports that 79% of doctors report using defensive medicine at a cost of $84-150 billion every year [12]. Other reports show similar high rates of defensive practices [7, 13]. Some research, however, suggests that these may be overestimates based on anecdotal reports and inaccurate survey methods [14] and that clinical decisions are not based on previous malpractice experience [15]. Furthermore, the GAO concluded that these studies focused on specific clinical situations, had low response rates, and did not address frequency of defensive practices [10]. Therefore, available studies cannot be generalized to estimate the extent of defensive practice. Overall, the CBO believes limiting defensive practices would result in little savings to the healthcare system [5]. There is also evidence that fear of malpractice litigation leads to under-reporting of medical errors, endangering patient safety. This will be discussed further in later sections. Thus, although it is likely that defensive medicine exists, the costs of such practices are still unknown.

Patient Safety

Background

The 1999 IOM report, “To Err is Human,” was a wake-up call to the public, hospital administrators, and healthcare providers. It found that medical errors account for between 44,000-98,000 deaths every year, at a national cost of $17-29 billion. Taking the conservative estimate, this places medical errors as the eighth leading cause of death in country, surpassing automobile accidents and breast cancer [33].

Adverse events are injuries resulting from medical management. Those that are preventable are considered medical errors. Adverse events occur to approximately 3-4% of patients [33]. Brennan, et al. found that adverse events due to negligence occurred in 1% of their sample, with 16.2% of these errors causing permanent disability or death [23]. Another study found that an average of two errors a day occur in the intensive care unit, of which 20% were potentially serious or deadly [34]. These safety standards are abysmal in comparison to other high-risk industries that for decades have been “looking critically at human factors and interface design practice in preventing accidents and increasing operating efficiency” [34].

Cause of Error

The IOM found that most medical errors were not due to individual incompetence or inaction, but rather systematic and organizational problems. Health care is exceedingly complex and depends on the interaction of many human players and advanced technology. Often different areas of the system are fragmented and bureaucratic, impeding healthcare delivery, communication, and transition. These problems are exacerbated by a medical culture that is traditionally apprehensive towards addressing medical errors for fear of litigation, loss of market share, and increased external regulation [33-35].

In order to prevent future injuries, the healthcare system needs to address these systematic problems. As in other high-risk industries, data on adverse events and errors need to be collected and analyzed. This will guide the development of new organizational structures, technologies, and means of communication, allowing us to avoid preventable patient harm [33, 34].

Reporting And Disclosure:

In their 1999 report, IOM recommended implementing a nationwide system of mandatory and voluntary reporting [33]. Only through such data collection can root-cause analysis be undertaken and proper improvements made. Unfortunately under-reporting plagues efforts to establish useful data collection systems. In 2003 the National Academy for State Health Policy (NASHP) noted under-reporting from every state with mandatory systems [35]. The biggest obstacle has been the fear by hospital administrators and doctors that such reports could be used against them in litigation. Little, if any, empirical data is available to corroborate or refute this fear, although most states with mandatory reporting systems saw no suggestion of increased number of malpractice claims [35]. In order to make widespread error reporting realistic, such reports must be immune from legal discovery in malpractice suits [23, 34, 36].

Medical error disclosure is also largely inhibited by the current culture of healthcare. A study of residents found that only 50% reported errors to their attending physicians and less that 25% told the patient or the patient’s family. Another study found that medical mistakes identified and discussed in clinical meetings are rarely reported to the appropriate patient safety department [37]. Once again increased litigation is a primary fear of transparent error reporting. There is limited evidence, most notably from a Veterans’ Affairs hospital, that early disclosure and compensation does not necessarily result in increased litigation frequency or costs [38]. As discussed below, full disclosure of error and moving towards a no-fault system of compensation may be a good alternative to the current tort system.

A Call For Active Leadership:

Given the sobering data on rates of medical error and the resulting impact on patient safety, healthcare providers should be taking a leading role in making systematic changes to the healthcare system. In addition to their ethical obligation to protect the well-being of patients, physicians have the opportunity to take an active role in improving malpractice liability. Fewer adverse events will lead to fewer lawsuits and lower malpractice premiums. For example, after the implementation of strict professional standards, anesthesiologists saw a drastic decrease in deaths and malpractice premiums [39]. In addition, alternative methods of dealing with adverse events may create greater patient trust in the healthcare system and improve patient-doctor communication. Stronger relationships between physicians and their patients have the potential to further decrease malpractice claims [40, 41].

Encouraging physician-led patient safety reform through external action has also been suggested. Facilitating this change in culture could include adjusting accreditation and licensure requirements for doctors and physicians, insurance premium discounts, health plan subsidies for premiums, and making reform a prerequisite to legislative tort reform [34, 39]. For example the Joint Commission for Accreditation of Healthcare Organizations (JCAHO) takes implementation of its safety standards into account when determining accreditation of healthcare facilities. This includes reporting of “sentinel events” (i.e. an unexpected incident that risks or causes death or serious injury) and an accompanying root-cause analysis of the event [42].

Addressing patient safety issues should also include tougher professional discipline. In 2003 one percent of physicians accounted for 12% of total malpractice damages paid. The five percent of doctors with the highest payments accounted for nearly one-third of total damages [43]. Of the doctors with five or more malpractice payments since 1990, only 22% were disciplined [32]. The National Practitioner Database shows that nearly 60% of physicians with 10 or more malpractice reports had no reports of disciplinary action, although under-reporting makes this data difficult to generalize [43]. Licensing boards and professional associations must do a better job of disciplining doctors who continuously put patients at risk. Proper sanctioning of this relatively small number of providers can save lives and lower malpractice liability for the rest of the profession.

Safety improvements could be further motivated by a shift to enterprise liability. Under such a system the institution a physician works for (e.g. hospital or practice group) is liable for malpractice claims instead of the individual provider. By increasing the pool of potential litigation defendants, these institutions could be experience-rated for malpractice premiums. This would create a competitive and economic incentive to improve safety standards and deter adverse events. As reported by the IOM, most medical errors are due to systematic obstacles, so shift to an institutional approach would greatly improve patient safety [33, 44].

Failure of Tort System:

The tort system is meant to serve three purposes: to compensate victims of medical liability, to deter professional negligence, and to provide corrective justice [16]. There is evidence that it does none of these effectively.

First of all, very few malpractice victims are properly compensated. The vast majority of those subjected to medical negligence never file a claim. A review of 30,000 randomly selected medical records found that only 1.5% of adverse outcomes due to negligence resulted in malpractice claims [17]. Furthermore, the plaintiff receives relatively little of the total damages awarded in successful suits. Administrative costs account for 40-60% of tort awards, largely in attorney fees [18]. Only half of all malpractice cost are returned to patients [6].

The deterrent effect of the medical liability system is also suspect. Conclusive empirical evidence of the deterrent effect of general tort law (e.g. including automobile accident and product liability) is lacking [16]. Likewise, although many complicating factors plague deterrence analysis, research looking specifically at malpractice liability has found little relation between history of malpractice and deterrence [16, 19]. This makes sense in light of how insurance companies segment their risk. Since there are few methods for tracking professional quality or malpractice history of individual physicians, companies base premiums on specialty and geographic area [3]. Trials of experience-based premiums by states and insurance companies have proven complex and “unworkable” [16]. Thus, individual performance does not impact subsequent premium rates. There is little deterrence for negligent healthcare providers to improve, while competent physicians with no malpractice history may face unfairly high premiums [3]. As discussed below a small percentage of physicians are responsible for a large portion of the total malpractice payments.

Finally, it is doubtful that the current medical liability system fulfills its role in distributing corrective justice, i.e. it fails to “rectif[y] the injustice inflicted by one person on another” [20]. First of all, it is inherently difficult to determine medical negligence. In one study, one-third of experts reviewing cases outside of the courtroom failed to reach a consensus on whether the negligence was evident [21]. Furthermore, evidence suggests that there is little relation between negligent action and the outcome of malpractice suits. Rather, it is the severity of patient injury that predicts the damages received by the claimant [19], although conflicting studies exist [22]. Moreover, rates of negligence across specialty areas are consistent, although malpractice premiums fluctuate greatly [23, 24.]. Researchers reviewing medical records also report examples demonstrating the “art” of malpractice litigation, in which the presence or absence of negligence had little impact on the handling of the suit. Rather, legal strategy and ability to win ultimately wielded the greatest influence in litigation decisions [19].

In summation, there an obvious disconnect between negligence, litigation outcomes, and malpractice premiums, pointing to a failure of the current medical liability system to serve its purpose. What are the solutions being offered? And what evidence supports those solutions?

Caps on Malpractice Damages

Background and Evidence:

The current medical malpractice crisis, as well as those of the 1970s and 1980s, has led most states to enact various forms of tort reform. The most widely publicized and promoted of these reforms is restrictions, or “caps”, on the amount of non-economic damages that can be awarded in a malpractice claim. There is great variability in reform legislation between states, but non-economic damages are generally capped from $250,000-$750,000 [5, 25]. Caps are usually implemented in combination with additional tort reform measures, such joint-and-several, collateral source, statute of limitations, and attorney contingency fee reforms. The overall goal of these reforms is to limit the number of claims and the amount of damages paid, thus making “frivolous” suits less appealing and adding some form of standardization to award judgments [26].

Research indicates that non-economic caps improve insurance company profitability and may lower the rate of malpractice premium growth. A 2004 CBO report found that caps reduced the number of claims filed, the amount awarded, and insurance costs [26]. The CBO also determined that federal malpractice reform could lower premiums by 25-30% [27]. The GAO examined 23 states and found that from 2001-2002 premiums in states with caps increased by an average of 10% versus a 29% growth in states without limited reform [10]. Other research found 17% lower premiums in states with award caps [6]. An earlier report from the Office of Technology Assessment found that caps lowered claim amounts and malpractice premiums [5]. It should be noted, however, that some studies have found that premiums have not decreased following tort reform, even if insurance company profits are increased [5, 28]. There is also evidence that caps on damages may create an “anchoring” effect. When juries are aware that caps are in place, their awards for less severe injuries are higher and more variable. Thus, caps may increase the amount of damages received by patients with relatively mild injuries, while limiting compensation for the most severely harmed patients [29].

Are Caps Sufficient?

Findings demonstrating the effects of tort reform measures on malpractice costs should be considered carefully. For instance, there is much variation between individual states. In 2002, the average per capita payment (total claims payments of a state divided by its population) ranged from $4 to $16 in cap states and from $3 to $33 in limited reform states. When two states with consistently and significantly higher claim payments were removed from the limited reform group, however, the average per capita payment claim was almost identical to the average of states with non-economic caps [10]. Another study found that the median annual premium in states with caps in place was actually higher than in states without caps by over 10% [8].

Empirical findings on the effectiveness of non-economic caps are often conflicting, inconclusive, or steeped in caveats because of the complexity of analysis and dearth of available data [26, 28]. States differ widely in their approach to tort reform, making comparison difficult. Furthermore, since most states enact multiple reforms within a single piece of legislation, it is difficult to isolate the impact of individual reform methods. The constitutionality of tort reform legislation is often questioned, creating a lag between its passage and implementation [26]. Researchers often compare states using incomplete data and may fail to take into account inherent differences between states that make any such comparisons unfair and inaccurate [10, 26].

Furthermore, is it fair to place arbitrary limits on malpractice awards? Perhaps more importantly, are caps the best way to address the medical liability crisis? In an attempt to limit “frivolous” lawsuits, tort reform legislation also limits legitimate malpractice claims. Non-economic damages are awarded for real injuries, such as loss of normal bowel function, blindness, and disfigurement. Critics argue that limiting these awards disproportionately impacts the most severely injured plaintiffs [30]. Non-economic caps also result in awards that are more heavily weighted towards economic damages. This limits the compensation available to the poor, non-working (including children and seniors), and unpaid (e.g. stay-at-home-parent) victims of medical negligence. With less chance of large judgments, and therefore contingency-based legal representation, these populations may be excluded from the litigation system. Furthermore, cap legislation often does not account for inflation, causing a relative constriction of malpractice awards as time passes [30-32].

Many factors influence malpractice insurance premiums. If critics of caps are correct, malpractice crises correspond to insurance and market cycles, meaning that upward trends in premium rates will wane accordingly. Limiting compensation for victims of medical negligence may needlessly infringe on plaintiff rights [30-32].

Finally, although caps on non-economic damages may ultimately lower premiums, they do nothing to address more fundamental issues facing the medical system. Cap reform ignores the failure of the current tort system to protect competent doctors and harmed patients. Furthermore, it does nothing to address the growing concern over patient safety. The Institute of Medicine (IOM) estimated that 44,000-98,000 people die of medical error every year, resulting in an enormous economic and emotion cost [33]. In light of these findings, rising malpractice premiums should be looked at as a cry for systematic improvements in patient safety. The best protection physicians have against liability suits is taking an active role in improving patient safety and addressing the root-cause of malpractice claims.

A Different Approach

In light of the failure of the current tort system and the complexities of the malpractice insurance market, comprehensive and creative solutions are needed to address medical negligence litigation. A number of such approaches have been attempted, although their scope has generally been limited. The following sections discuss several of the more notable examples of alternative malpractice reform, particularly patient safety reform, no-fault insurance, and alternative dispute resolution (ADR). This is by no means a comprehensive review of alternate reform methods, but these approaches may provide physicians with an opportunity to actively improve patient care standards, while lowering malpractice costs.

No-Fault Insurance

Background

Given the failure of the tort system in achieving its goals and the increasingly apparent problem of patient safety, alternative forms of addressing medical errors and patient compensation needs to be considered. One such reform that has received considerable discussion is the no-fault system.

No-fault compensation claims are decided administratively and do not require determination of negligence. A prominent example of a no-fault system is the workmen’s compensation program. In this system it is necessary to prove a work-related accident caused an injury, but not that the accident was due to negligence [44]. Likewise in the healthcare profession, reparation would be available for victims of preventable adverse events, even if proper standards of care were exercised (i.e. negligence was not present). Some experts suggest that a medical no-fault program be administered in a similar manner as workmen’s compensation. An adjuster and/or panel of experts would hear the case and base awards on uniform guidelines. An appeals system would be available for participants dissatisfied with the decision [30].

Cons: Arguments Against No-Fault

Critics of no-fault programs believe that expanding compensation availability would cause a drastic increase in the number of claims and would become financially overwhelming. How to finance such a system is also a point of contention. It may also prove exceedingly difficult to determine what qualifies as a compensable event. Some contend that by removing individual fault from liability cases, there is no impetus for error deterrence. It may also be difficult to create jurisdiction boundaries and enforce judgments between no-fault and tort systems [21, 44].

Pros: Arguments For No-Fault

Proponents argue that the lower administrative costs of no-fault programs will largely offset the increased number of claims. Thus, no-fault programs can increase the number of compensated patients by increasing the percentage of expenses going to the patient (instead of to lawyers’ fees, court overhead, etc.). This is an alternative to our current tort system in which very few eligible patients are redressed and administrative costs account for the majority of expenses. It should be noted that in order to make no-fault programs cost-effective eligibility requirements must be implemented, such as the “disability threshold” used in Sweden[44].

Removing the burden of proving negligence also has possible benefits. If healthcare providers are no longer burdened by the fear of personal litigation, reporting errors will become more transparent and widespread. Better reporting will allow for better root-cause analysis, resulting in better patient safety standards, and fewer adverse events. Likewise, by trading the adversarial atmosphere of litigation with the more cooperative no-fault approach, patient-doctor relationships and patient trust in the healthcare system may improve. Removing the adversarial nature from compensation hearings also helps resolve no-fault cases much faster. In Sweden, the average case is resolved in 6 months [44], versus an average of over two years on federal tort cases [45].

Safety improvements could be further combining a no-fault system with a shift to enterprise liability. Under such a system the institution a physician works for (e.g. hospital or practice group) is liable for malpractice claims instead of the individual provider. By increasing the pool of potential litigation defendants, these institutions could be experience-rated for malpractice premiums. This would create a competitive and economic incentive to improve safety standards and deter adverse events. As reported by the IOM, most medical errors are due to systematic obstacles, so shift to an institutional approach would greatly improve patient safety [33, 44].

Available Evidence:

The limited empirical research on no-fault compensation suggests that it may be a feasible alternative to the current tort system. Studdert and Brennan estimate that many more people could be compensated under a Sweden-style no-fault program with a budget about equal to that spent on the current tort system [44]. In 1987 a VA hospital in Lexington, Kentucky decided to disclose all incidences of negligence to patients and their families. Under this policy cases are reviewed for merit and appropriate damages are negotiated. Although this policy had the potential to substantially increase malpractice claims, liability payments have been comparable to similar facilities [38].

Countries with established no-fault systems may provide guidance and insight for similar efforts in the United States. Sweden and New Zealand have operated no-fault systems for over 25 years, while Finland, Norway, and Denmark each have over a decade of experience [44]. The New Zealand system initially encountered problems with increasing claims and costs, but has since added amendments to address these problems [21]. The rate of serious preventable adverse events was similar between the New Zealand no-fault system and tort-based system of the United States, indicating consistent pools of potential claim risk and deterrence effect between the two [46, 47]. Unlike the US tort system, however, claims in the New Zealand program were well-targeted; most claims were the result of obvious adverse events that were compensable [47].

No state currently uses an expansive no-fault system. In the late 1980’s, however, limited no-fault programs were enacted in Virginia and Florida to compensate serious birth-related injuries. Studies have determined that these programs are successful in lowering malpractice premiums, lowering administrative costs, and increasing the percentage of payment received by the patient, while compensation has remained comparable to that under the tort system [45, 48]. Problems, however, do exist. Florida’s Neurological Injury Compensation Association (NICA), on which most research has focused, has received very few cases and done little to decrease the frequency of “bad baby” cases in the tort system [45, 49]. In general NICA is limited in scope of applicability and does not establish well-defined jurisdictional boundaries to prevent “maximizing behavior” of claimants. Furthermore there appears to be little motivation by lawmakers to make any move towards broader reform [49].

Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) is an umbrella term used to describe a broad range of conflict management methods that utilize the guidance of a neutral third party. While ADR provides an alternative to traditional litigation, individual techniques can be strikingly different. In general, however, ADR procedures can be grouped into three families – decisional, facilitative, and advisory. In decisional ADR the neutral party hears arguments from the disputing parties and then issues a decision siding with one or the other. In contrast, the neutral party in facilitative ADR does not offer a decision. Rather, they encourage the disputing parties to resolve the problem themselves. Finally, advisory ADR is a hybrid of decisional and facilitative methods. The neutral party offers a non-binding decision that acts as a reference point for subsequent negotiation [50, 51]. This discussion will limit its focus on to the ADR methods most commonly discussed and used for medical malpractice disputes – mediation, arbitration, and screening panels.

Mediation

Mediation, a facilitative form of ADR, is a voluntary process in which the neutral third party facilitates a constructive dialogue between disputing parties in a non-adversarial environment. The key principles of mediation are autonomy, informed decision making, and confidentiality [52], with the ultimate control and responsibility of resolution residing with the disputing parties [50]. Unless explicitly contracted, decisions are non-binding and either party has the option to discontinue discussion and anytime to pursue other means of resolution, including traditional litigation [51, 53]. It should be noted that mediation is not considered appropriate for all malpractice claims. For example, cases in which monetary claims are high or future costs are unknown should be settled using different methods [52, 53].

Cons: Arguments Against Mediation

There is little direct opposition to the use of mediation in medical malpractice cases in the literature. However, some critics hypothesize that a shift to mediation may increase the total number of claims and thus total cost. Little information is available to support or refute this claim [54]. Also, strict confidentiality limits outside groups from monitoring safety or looking for larger patterns of errors.

Pros: Arguments for Mediation

The confidentiality of mediation allows for an honest dialogue between participants. Physicians, hospital administrators, and patients can candidly review case facts and provide necessary clarification without fear of future reprisal. Additionally, mediation allows participants great flexibility to shape creative, nuanced, mutually satisfactory resolutions. There are no stipulations on the type of agreement that can be reached [50, 52, 53]. These characteristics mean that resolutions need not rely solely on monetary reparations. Many patients want nothing more than a thorough explanation of events, an apology, and corrective measures to prevent future harm to others [50, 53, 55].

Furthermore, because mediation encourages open communication between disputing parties, a positive (or at least less negative) doctor-patient relationship is more likely to be maintained. Doctors can more accurately assess their performance and learn from patient feedback, which may contribute to improving patient safety. This benefit could be further encouraged through the participation of state licensing boards [55]. Additional benefits of mediation include a faster and possibly cheaper resolution, the opportunity for physicians to express regret without admitting negligence, and the ability of parties to choose a medically knowledgeable neutral with a flexible schedule [51, 53, 54].

Empirical Evidence

Little empirical evidence is available to assess the performance of mediation in medical malpractice disputes. The limited data examining mediation may stem partly from the confidentiality of the proceeding. Political considerations are also an obstacle. In one pilot project in Massachusetts, researchers reported that political concerns limited funding, staffing, and the range of eligible cases [55]. There was also resistance from insurance companies, lawyers, and medical groups to “change the status quo” [56].

Although the potential benefits of mediation are widely accepted, it is seldom used. A report examining the member companies of the Physicians’ Insurance Association of America found that less than 2% of claims utilized mediation [50]. In general, ADR methods may be under-utilized because any payments must be reported to the NPDB (just as with malpractice litigation payments). Since these reports may negatively impact a physician’s marketability, many prefer entering litigation where most case decisions are in favor of the defense [57].

As reported by Dauer and Marcus, every physician and nearly every patient offered mediation under the Massachusetts Voluntary Mediation Program accepted. Of the first nine cases resolved, five involved no monetary compensation [55]. There are anecdotal reports that physicians that take part in mediation resolution are more satisfied than those taking part in the litigation system. Even when used in the adversarial context of monetary settlement, mediation was faster and less expensive, with increased physician satisfaction [50]. Unpublished research finding funded by the Robert Wood Johnson Foundation found that mediation resolution was faster and at less cost to the defense [56].

It should be noted, however, that voluntary mediation may result in drastically different result than court-ordered mediation. In the latter case, an adversarial atmosphere is maintained, and the proceedings amount to little more than negotiation of monetary compensation. A study in North Carolina found that court-ordered mediation was unsuccessful in 56% of cases, did nothing to reduce the rate of claims going to trial, and had no impact on trial outcomes or settlements [58].

Arbitration

Arbitration is a decisional method of ADR. Disputing parties agree on (a) neutral third person(s), who hears both sides of the case and makes a decision. The proceedings are similar to an informal trial, although more streamlined and without a jury [50]. Arbitration is legally binding unless both parties agree to a non-binding decision. Since federal and state law generally prohibit overturning an arbitration award, this form of ADR should not be used to decide cases of extreme importance (e.g. when a physician’s license is at stake) [50]. Arbitration requirements vary greatly between states. Some states consider arbitration unconstitutional, while some require arbitration for all cases [59].

Cons: Arguments Against Arbitration

Some critics are skeptical that patients are fully informed that they are waiving their litigation rights when agreeing to arbitration. Informed consent is especially important in arbitration because the participants forgo a jury trial and overturning arbitrator decisions in difficult, even in the case of gross errors of judgment [4, 50]. Since patients cannot be adequately informed prior to emergency treatment, this consent requirement limits arbitration to non-emergent care, which accounts for only 25% of malpractice claims. [60]. There is also concern about patient bargaining strength and the potential cost of wasted arbitration in situations when the arbitrator’s decision is non-binding and litigation is subsequently pursued [4]. Critics also believe that arbitration is biased toward physicians and, in general, obstructs patient rights of due-process [60].

Pros: Arguments for Arbitration

Arbitration is generally faster, simpler, and cheaper than litigation. It also offers the participants the opportunity of choosing (a) knowledgeable arbitrator(s) that will understand factual intricacies of the case [57]. This holds the potential for improved decision-making and the reduction of merit-less claims [60]. Patients and doctors could also fashion arbitration agreements prior to treatment. This “variable risk framework” would allow a case-by-case assessment of liability depending on the risk level of the treatment. Furthermore, “neo no-fault” systems could be devised, all while encouraging a fruitful partnership between patients and their physicians [60].

Empirical Evidence

There is little evidence in support of legal criticisms of arbitration, and most court decisions have found that it is not inherently biased [60]. Even so, in a 1997 report, only 9% of hospitals and physicians surveyed reported using arbitration in resolving malpractice disputes, although there may be a trend towards more widespread use [61].          Reports from the mid-1970’s on the effectiveness of California’s Hospital Arbitration Project found that 63% fewer claims were litigated and that 22% of those claims that were pursued got resolved faster and at 59% less expense to the hospital. The study also found that arbitrated and litigated claims increased yearly during the span of the arbitration project. Reports examining arbitration in California, Michigan, and New York, generally supported these findings [62], while other findings were inconclusive [61]. Some authors note than most empirical evidence has focused on court-ordered arbitration, precluding their finding from broader generalizations [61].

Screening Panels

Screening panels are pre-trial tribunals that examine evidence in malpractice claims and provide a non-binding opinion as to their merit. The main goals are to filter “frivolous” cases before they enter the litigation system and to encourage settlement of valid claims [57]. The make-up and structure of screening panels varies greatly from state to state. There are generally three to seven tribunal members. One or more medical professional is usually joined by attorneys, judges, and/or patient advocates. Specific panel procedures and goals vary by jurisdiction, as does the admissibility of panel finding into subsequent court proceedings varies by jurisdiction [57, 62, 63].

Cons: Arguments Against Screening Panels

Critics believe that screening panels introduce unnecessary delays and increased cost into medical malpractice dispute resolution. Since the panel findings are non-binding (and may not even be admissible into court) they do little to dissuade plaintiffs from proceeding with litigation. Some maintain that panels may in fact encourage more merit-less cases, as panels provide a testing ground for claims that would not have otherwise been perused. Thus, screening panels increase the amount of time and costs involved with defending cases. Others maintain that panels are biased toward physicians and may encroach on a patients’ right to due process. Some attorney’s believe pre-trial panel requirements are equal to double litigation. As of 2003, eleven states had invalidated screen panel legislation. Furthermore, this impression of bias may create an adversarial atmosphere to panel proceeding and preclude claim settlement [57, 62, 63].

Pros: Arguments For Screening Panels

Proponents argue that screening panels have more expertise than juries and can better judge the merits of a case. Thus, panels are a successful method for filtering frivolous malpractice claims, and that by doing so they lower the burden on the over-taxed litigation system. The expert opinion of these panels can also be used as a point-of-reference for settlement negotiations or as an inexpensive form of expert testimony. Panel hearing also may encourage patients with smaller claims to pursue compensation.  In total, pre-trial panels are more streamlined than the litigation system, and thus hold the potential to decide cases faster and at less cost [62, 63].

Empirical Evidence

Research on the effectiveness of pre-trial panels has been mixed over the years. A 1980 report found that screening committees lowered the number of cases going to litigation and provided faster resolution of claims. For instance, in New York two-thirds of cases settled before trial based on the panel’s decision, and in New Jersey cases were decided within hours. The author did note, however, other states with delays in panel selection and proceedings [62]. Research looking at Maryland in 1986 found that only 10-15% of panel decisions were further litigated. In the same report, a review of pre-trail screening found that panels did not cause significant resolution delays [62]. Other research in the mid-1980’s on screening panels of various states found varied results [63]. More recent data from New Mexico and Louisiana show that 48% and 40% of cases, respectively, were dropped when the panel sided with the defense. When litigation was perused despite the panel decision, courts sided with physicians 96% of the time in New Mexico and 88% of the time in Louisiana. Cases were settled 81% of the time when the panel sided with the plaintiff [64]. These numbers indicate that, at least in some states, panels are succeeding in resolving cases outside of the courtroom.

These claims are largely refuted, however, by a comprehensive review of malpractice screening panels done by Catherine Struve in 2003. She determined that data demonstrating screening panel impact on claims frequency are inconclusive, but that increased expense and length of litigation may deter merited, as well as frivolous, claims. In states that admit panel finding into court proceedings, pre-trial screenings can be tantamount to full trials, leading to further costs and delays. Trial delays have rendered screening panels unconstitutional in some states. Struve also points out that, although pre-trail panels increase the number of dropped claims, some of these may be merited, albeit small, claims. Furthermore, some claims that are eventually dropped may have been made only because the panel system was available to begin with. Screening panels also seem to have no significant effect on the severity of paid claims or on malpractice premiums. There is also some empirical evidence that physicians may not be reliably neutral, nor accurate in accessing their colleagues [63].

Conclusions:

Increasing medical malpractice insurance premiums are a growing concern in the American healthcare system. Many physicians, professional organizations, and lawmakers claim the tort system encourages “frivolous” law suits and “jackpot” verdicts. In order to prevent a major dearth in healthcare access, they claim that strict malpractice liability restrictions, including caps on non-economic damages, must be mandated. While it is true that states with caps tended to have lower increases in premiums, the data are far from conclusive. Differences between states and specialty areas, concurrent implementation of multiple liability reforms, limited empirical data, and the lag period between passage of reform and execution make it difficult to draw accurate conclusions. Furthermore, many factors other than malpractice suits have led to recent increases in medical liability premiums. Insurance and market cycles, misuse of reserve funds, artificially low premiums of the late 1990’s, decreased market competition, and increases in reinsurance costs and healthcare inflation have all impacted current premium rates. There are also valid concerns about the fairness of any reforms that limit the compensation of patients harmed by medical negligence.

Perhaps most importantly, the current approach to medical liability reform through caps on awards does nothing to address fundamental problems of the healthcare system. Recent studies indicate that medical errors results in tens of thousands of deaths every year. As patient advocates, physicians should be taking a leading role in reforming the systematic obstacles that cause such needless harm. There is also economic motivation for doings so, as fewer patient injuries will result in lower malpractice insurance premiums. This drop in premiums could be exacerbated by improving error reporting and disclosure by allowing root-cause analysis of medical errors and fostering improved patient-doctor relationships.

There is also evidence suggesting that the current tort system fails to accomplish its objectives of compensating injured patients, deterring medical negligence, and distributing corrective justice. In light of these findings, examination of alternate methods of reform is warranted. No-fault insurance systems have the potential to compensate many more injured patients without stigmatizing physicians. No-fault programs have worked in other countries for decades and have seen some success in state pilot projects, although they have been limited in scope. Mediation also appears promising. Although seldom used, it opens dialogue between patients and doctors in a non-adversarial environment and may resolve disputes faster and at lower overall costs. Arbitration and screening panels, although more controversial, may hold similar potential.

This paper includes discussion of just a few of the many alternative (i.e. non-cap) solutions to increasing malpractice insurance premiums. While distinct in application and scope, these methods tend to address more fundamental problems facing the medical tort and healthcare systems. Physicians should be doing more than just advocating for limitations on patient rights to compensation. Rather, they are in a unique position to address systematic flaws in healthcare, engage patients, and create better methods of resolving medical error disputes. Physicians can thus actively rein rising malpractice insurance premiums, and by doing so, doctors, patients, and society stand to benefit.

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