NC S33--Medical Malpractice

I have been wanting the Republican leaders in the North Carolina General Assembly to make clear their health policy priorities now that they control both Houses in the Legislature. They have now shown us that part of what they are for is medical malpractice reform.

A successful malpractice system would protect patients from harm via a deterrent effect of lawsuits, compensate patients for harm and exact justice. In addition, a good system would protect physicians from frivolous suits, identify substandard physicians so that medical licensure boards could remediate them or remove their licenses and provide a clear signal to insurers regarding the risk of insuring a physician.

Our malpractice system does none of these well.

I always thought that medical malpractice reform was the key to a health reform deal, and the fact that such a deal wasn't struck is the most compelling evidence for me that Republicans in Congress punted on policy in favor of politics in the entire debate on health care reform from 2009-10. They thought they could kill the Affordable Care Act (ACA), and given that it passed, they missed an opportunity to advance a longstanding interest of theirs. Now the issue has moved to the states. If the Republicans in North Carolina said that the ACA didn't do enough to address medical malpractice, I would agree, but would also say that the problem is broad and multi-faceted and cannot be addressed by damage caps alone. A comprehensive patient safety/medical malpractice reform is needed. S33 is not that and is not a good bill as written.

Most people focus on only one part of broader patient safety problem: the effect of frivolous lawsuits OR the fact that patients who are harmed via true negligence are rarely compensated and there are large problems with medical errors in our nation. [a variety of related links]. In fact, which ever problem worries you the most, the opposite is also a big problem that is best addressed in a comprehensive manner. North Carolina could be an innovative state and try and produce a comprehensive approach to the patient safety/medical malpractice problem, but S33 does not do that.

S33 would bring about caps on non-economic damages in lawsuits, which are fairly common across states. They are usually sold as a way to slow health care cost inflation by reducing defensive medicine, but the evidence shows the effects of such policies on costs are not strong. In short, this likely won't do much, if anything, to address costs in North Carolina. More controversially, S33 would make it hard if not impossible to sue an ER doctor or a hospital in North Carolina for negligent care provided in an emergency setting, as I read the bill. This strikes me as a bizarre policy.

I get that talking about medical malpractice is politically popular, but in my personal experience, while everyone hates lawyers in the abstract, when they or a family member is harmed they want justice.

A reform of the current malpractice laws by capping non economic damages could have a place in a comprehensive patient safety reform that sought to reduce the adversarial nature of the malpractice system, and instead transform it into one that compensates harm and tries to reduce the future occurrence of errors through openly discussing what caused the error. In such a system, physicians would have to do a better job of policing their own than they currently do, but the acknowledgment of and compensation for harm would be separated from the adjudication of negligence.

Advocates of S33 should also remember that one of the motivations for filing a malpractice lawsuit based on patient harm in the absence of negligence is the fact that an injury can produce both large medical bills and render the harmed individual uninsurable. Medical malpractice reform makes sense in the context of an overall strategy to expand insurance coverage, address costs comprehensively, and create a patient safety approach to dealing with medical errors and improve quality.

The Republicans in the General Assembly have said they are opposed to the ACA, so they desire to remove the route to expanding insurance coverage that is provided by the ACA. Do they have a plan that would expand coverage and thus remove a key motivation for filling a lawsuit? If so, I haven't heard it, but would like to do so. This is necessary for a meaningful reform of ALL the problems with medical malpractice in North Carolina.

update 9pm, 2/21: Brad Flansbaum writing at Hospitalist Leader with usual good sense and a balanced take. Also, from hanging out around universities and teaching universities for a long time, the psychic burden of med mal worry among docs is very real. This column I wrote in Aug 2009 in the News and Observer touched on this and that is a side benefit of 'dealing' with med mal in some way. This policy answer is just typically oversold for what it can actually do, especially to change the cost of medical care. It is part of a solution. NC can do a lot better than S33. Another thought that Brad notes is that federal notions of med mal such as what was offered in the substitute motion in the House in Nov. 2009 with national med mal is a somewhat odd policy for persons to take who are worried about over-reach of the federal government. The NC General Assembly focusing on this issue could thus be seen as the correct level of government to address these issues, though the bill S33 is a bit wanting.

Also, Brad Flansbaum asking in the comments for a cite that notes how much of the 'frivolous lawsuit' action is due to people suing to pay for current and/or future care for uninsurable persons. The logic of the motivation seems straightforward, but I don't have a cite for this assertion. This paper notes that 37% of the suits filed are in cases in which no error was judged to have been made, presumably just a bad outcome. The question is what prportion of these would go away if everyone had access to guaranteed health insurance?