NC Senate Passes S33

The North Carolina Senate yesterday passed S33 (36-13), (I am interviewed in the story) a bill that would limit non-economic damages in medical malpractice suits to $500,000, and would change the standard for malpractice for care provided in an Emergency Room from negligence to gross negligence, making it harder to sue. The suit wouldn't alter the ability to sue for medical costs or economic losses, like wages. Over half of the states have passed some form of medical malpractice reform over the past few years, and as S33 goes to the House, it looks sure to pass.

Some opponents say the law violates the North Carolina constitution; I have no idea whether this is the case or not.

The debate over medical malpractice is a timeless issue, coming and going as health policy moves in and out of the front page, and always engendering strong feelings. In fact, when I teach undergrad health policy classes at Duke, the most predictable class each semester is when we talk about medical malpractice. Roughly one-third of the kids will have a parent(s) who is a lawyer, and another thing a parent who is a doctor(s). That class discussion is always hot, and the only topic easier to get a dinner party really going where I live is whether Dean Smith or Mike Krzyzewski is a better coach.

Once S33 becomes law, will 'the problem' be fixed? What can be expected to improve in our state? What exactly do the sponsors of the legislation claim will be the benefits of the legislation? It is important to keep the goals of policy in mind up front, because that is the only way you can tell later if it worked. What are the biggest claims of supporters?

• Medical malpractice premiums will drop. This will likely be the case. One of the main sponsors of S33, Sen. Apodoca notes that the law should slow the increase in malpractice premiums that physicians must pay, making our state a more attractive place to practice medicine. This is probably the most solid claim about what the bill could do based on what has happened in other states, and it makes sense because the law will make it harder to bring a suit, and will reduce the size of the largest awards. However, we could still have a malpractice premium crisis next Fall or the next. The most likely even to trigger one is not a blockbuster malpractice case, but a Hurricane hitting our coast and causing huge losses (because the insurance industry is highly integrated). Frank Sloan's book on Medical Malpractice has a comprehensive discussion of the integrated nature of the insurance industry, and how many factors that have nothing to do with claims experience have historically lead to spikes in premiums.
  
• Health Care costs will drop because defensive medicine will decline. This is a dubious claim based on the experience of other states. Sen. Rucho, another key supporter of S33 notes reducing overall health care costs that are driven up by defensive medicine as a primary motivation for the bill. Defensive medicine undoubtedly increases costs, with the best estimates ranging from 1-9%; Sen. Rucho says 10-20%. Most of the research that estimates the size of defensive medicine asks providers to note what tests are defensive and therefore not needed medically, but ordered so that a physician can defend themselves if they are sued. The problem is that there are multiple motivations of order more tests, including getting paid, patients wanting more information and assuming more tests are better and habit. Earlier this week I posed on a recent study that estimated the size of defensive medicine in one specialty and demonstrates why it is not likely malpractice reform will appreciably reduce costs.

What does this law not address?

• The problem of medical errors. A Nov. 2010 study in the New England Journal of Medicine showed that the rate of medical errors in North Carolina remained high (25 injuries, or medically caused harms per 100 admissions), a decade after the Institute of Medicine report on medical errors, To Err is Human was published. There is a large patient safety problem in our state and country, and if S33 is the only thing passed by the N.C. General Assembly, we will have done nothing to address this. There are many, many more persons injured by medical care than lawsuits filed in N.C. (around 450 suits last year; many more injuries per year based in our state based on the best research, on the order of 10 times more).
  
• The adversarial nature of the patient safety/medical malpractice system. When litigation is the primary means of deterrent of substandard care, the adversarial nature of the system prohibits identifying those harmed efficiently, and learning from mistakes to try and lessen their occurrence in the future. I know a great many doctors personally, and it is true that there is a psychic burden they have that is related to lawsuits, that I think flows out of the adversarial nature of the system. Especially after a few drinks, most docs who I know will share concerns about quality and errors, and that patients' lives can be ruined by mistakes. At the same time, they remained haunted by the idea that one lawsuit could ruin their life. Both of these are true, and this bill does nothing to change the reality of an adversarial system that is the essence of this conundrum.

Medical malpractice reform would be a part of a comprehensive policy effort to patient harm cause by medical errors that moved away from an adversarial system, and one that was based on the principles of identifying and compensating for harm, perhaps using a medical court; seeking to understand why errors occurred with a goal of making them less common; and having a separate process to determine the need for remedial education and/or sanctions against a physician.

S33 simply doesn't address the root causes of the patient safety/medical malpractice problem. However, the House could still amend this bill and make it a more balanced patient safety and medical malpractice law.

update: added N.C. to the title of the post.