Statement on Medical Liability Reform

The following statement was developed by the American College of Surgeons (ACS) Legislative Committee and was approved by the Board of Regents at its October 2014 meeting.

The nation’s medical liability system is broken; it fails both patients and physicians. Less than 3 percent of patients who sustain medical injury sue for monetary compensation, and in 37 percent of all closed liability claims no error was discovered.^1,2 In addition, the current liability system costs the U.S. an estimated $55.6 billion annually (including $45.6 billion for defensive medicine).³ The system is costly and inefficient, and the process of compensating injuries related to medical errors is inaccurate.

The mission of the ACS is to improve the care of the surgical patient, safeguard standards of care, and create an ethical practice environment.⁴ The ACS is a proven leader in patient safety through initiatives such as the ACS National Surgical Quality Improvement Program (ACS NSQIP®) and the Inspiring Quality campaign.^5,6 The failing medical liability process jeopardizes the public’s trust in the health care system and threatens to undermine the successes that the ACS has achieved. Therefore, the ACS must continue to lead the way by advancing practical reforms that improve patient safety and provide quality health care.

Traditional liability reforms, such as caps on noneconomic damages and collateral source reform, may have market-stabilizing effects.³ The ACS has long supported these reforms and will continue to do so as a means of addressing skyrocketing liability insurance premiums. However, for decades, attempts to generate bipartisan political support for new tort reform have proven challenging, particularly at the federal level. In addition, reforms that focus on alleviating the financial impact of medical liability on health care professionals frequently do little to improve patient safety or to re-establish the trust patients place in the system.3

Beyond traditional legislative remedies, the medical liability system is in need of transformative change that focuses less on monetary reparations and more on the ACS mission centered on patient safety, quality health care, and provider accountability.^7,8 Adverse events should be approached with open communication and recognition that an unfortunate outcome is not synonymous with negligence. Compensation for injured patients, monetary or otherwise, should be fair and timely without the unnecessary delay commonly associated with the current tort process. Hospitals should pursue system-level changes that assure patients of quality care and that prevent event recurrences. Ultimately, negligent providers should be held accountable.

Alternative, patient-centered solutions to liability reform have received varying degrees of attention.^9,10 Health courts, enterprise liability, and alternative dispute resolution can be crafted around patient-centered principles and also provide excellent opportunities for reform.^9,10 However, on balance, disclosure and offer programs, otherwise known as communication and resolution programs (CRPs), show the most promise for promoting a culture of safety, quality, and accountability; restoring financial stability to the liability system; and requiring the least political capital for implementation.^11,12 All of these alternatives may be improvements over the status quo for both patients and providers and should be explored through additional research and advocacy. Structural barriers to their implementation, however, such as obsolete reporting requirements to the National Practitioner Data Bank (NPDB) and inconsistent apology protections, must be addressed.

The College actively supports:

• Reforms based on safety, quality, and accountability
• Continued advocacy of traditional reforms where appropriate and feasible
• Legislation that eases structural barriers to implementation of patient-centered reforms, specifically as it pertains to NPDB reporting requirements and apology laws
• Culture change among hospitals and providers to embrace swift adoption of alternative patient-centered reforms, including CRPs

References

1. Brennan T, Leape L, Laird N, et al. Incidence of adverse events and negligence in hospitalized patients. Results of the Harvard Medical School Practice Study. N Engl J Med. 1991;324(6):370-376.
2. Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med. 2006;354(19):2024-2033.
3. Mello MM, Chandra A, Gawande AA, Studdert DM. National costs of the medical liability system. Health Aff (Millwood). 2010;29(9):1569-1577.
4. American College of Surgeons Mission Statement. Available at: www.facs.org/about-acs. Accessed January 20, 2015.
5. American College of Surgeons Inspiring Quality initiative. Available at: http://inspiringquality.facs.org/. Accessed January 20, 2015.
6. Hall BL, Hamilton BH, Richards K, Bilimoria KY, Cohen ME, Ko CY. Does surgical quality improve in the American College of Surgeons National Surgical Quality Improvement Program? Ann Surg.2009;205(3):363-376.
7. American Medical Association. Medical Liability Reform Now! The facts you need to know to address the broken medical liability system. 2013 edition. Available at: www.protectpatientsnow.org/sites/default/files/mlr-now2b.pdf. Accessed January 21, 2015.
8. Marx D. Patient Safety and the “Just Culture”: A Primer for Health Care Executives. New York, NY: Columbia University; 2001.
9. Kachalia A, Mello MM. New directions in medical liability reform. N Engl J Med. 2011;364(16):1564-1572.
10. Metzler IS, Meara JG. Medical liability reform: Evidence for legislative and alternative approaches. Bull Am Coll Surg. 2012;97(1):6-11.
11. Bell SK, Smulowitz PB, Woodward AC, et al. Disclosure, apology, and offer programs: Stakeholders’ views of barriers to and strategies for broad implementation. Milbank Q. 2012;90(4):682-705.
12. Mello MM, Gallagher TH. Malpractice reform—opportunities for leadership by health care institutions and liability insurers. N Engl J Med. 2010;362(15):1353-1356.