Medical Liability Reform
Surgeons and other high-risk specialties periodically experience substantial medical liability insurance premium increases, especially in those states that have not enacted comprehensive medical liability reforms. The gold standard is the Medical Injury Compensation Reform Act (MICRA) passed in California in 1975. The standard MICRA reforms include: a $250,000 cap on noneconomic damages, modifications to the collateral source rule, mandatory periodic payments of future damages, and a sliding scale for plaintiff attorneys’ contingency fees. The American College of Surgeons (ACS) supports MICRA reforms in those states where reforms have not been passed, and also supports such reforms including implementing expert witness qualifications and modifying joint and several liability so that defendants are liable only for their own portion of noneconomic and punitive damages.
During 2014, MICRA came under attack when a California ballot initiative, Proposition 46, was placed before the voters. The College engaged in grassroots advocacy to defeat this ballot initiative by providing California Fellows with “No on 46” posters, and contributed financially to the statewide campaign against the proposition. The voters saw through this attempt to significantly damage MICRA, and the measure was defeated with almost 70 percent of the vote.
In 2012 and 2013, Massachusetts and Oregon adopted disclosure, apology, and offer statutes. These laws approach liability reform from a different perspective, and make it possible for a surgeon or institution to disclose to the patient that a medical error may have occurred, compassionately apologize for the mistake, and make an offer to compensate the patient outside of going to court. In 2013, Georgia passed a provider shield statute. Under the new statute, a barrier is created between physicians and public or private payor guidelines that could have been used as evidence in medical liability lawsuits. Evidence related to the public and private payor guidelines will be inadmissible in court and cannot be used as the standard of care and as a presumption of negligence in a medical liability lawsuit.
The College published in December 2014 a medical liability reform primer to help surgeons understand the various types of reforms and encourage them to consider a shift in strategy for addressing medical liability from simple tort reform focused on cost-containment to a patient-centered approach that prioritizes patient safety and preserves the doctor-patient relationship.
Scope of Practice
It is a common occurrence in state legislatures for one group of licensed health care professionals to seek modifications in their licensing acts to expand their scope of practice. Additional practice privileges may be reasonable in some cases if they have the education, training, and experience necessary to gain these privileges. However, more frequently this is not the case, with nonphysicians trying to perform surgical procedures on the eye, face, neck, and other parts of the body without the necessary medical or surgical training and experience that surgeons receive during medical school, residency training, and specialty fellowships.
It is important that patient safety and quality of care be the top concerns when legislators are faced with proposals to expand scope of practice. The ACS supports surgical specialty societies in their efforts to oppose the expansion of nonphysician scope of practice; while nonphysicians are well-trained to practice their respective professions, they have not received the education and training necessary to perform complex surgical procedures.
State legislatures address injury prevention concerns through many different pieces of legislation every year, and the ACS Committee on Trauma has a long-standing history of supporting injury prevention efforts in the states. These efforts can include graduated drivers’ licenses, mandatory seatbelt requirements, child restraint systems, youth athlete concussion education and prevention, programs to prevent falls by the elderly, motorcycle and bicycle helmet requirements, and all-terrain vehicle regulation.
Uniform Emergency Volunteer Health Practitioners Act (UEVHPA)
The Uniform Law Commission, a nonpartisan organization devoted since 1892 to working towards the development and enactment of uniform state laws, adopted a model state bill in 2007 to address barriers to volunteer physicians and health care practitioners responding to disasters. The purpose of the UEVHPA is to allow state governments to give reciprocity to other states’ licensees who are emergency services providers so that covered individuals may provide services without meeting the disaster state’s licensing requirements. It recognizes a national registration system utilized to confirm that physicians and health care practitioners are appropriately licensed and in good-standing in their respective state, with their licenses recognized in affected states for the duration of emergency declarations.
The Board of Governors Executive Committee and the Socioeconomic Issues Committee support passage of the UEVHPA in all states, and the ACS Board of Regents adopted a statement of support in October 2008. ACS chapters are strongly encouraged to work with their state legislatures to pass this legislation. The following states have passed the UEVHPA: Arkansas, Colorado, District of Columbia, Illinois, Indiana, Kentucky, Louisiana, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, Tennessee, Texas, and Utah. For 2016, the College has targeted Georgia and Pennsylvania for possible introduction and passage of the UEVHPA.
Trauma System Funding and Development
Trauma centers and emergency departments have been negatively impacted by lack of specialists due to medical liability problems, uncompensated care for uninsured or underinsured patients, federal regulations requiring the provision of care for every patient who walks in the door, and the ever-increasing cost of providing emergency care. The College supports efforts by its state chapters, state Committees on Trauma, and other stakeholders to raise revenues to alleviate some of the funding problems. States and counties have addressed this problem by increasing the tobacco tax and allocating some or all of the increase to the trauma system, assessing a surcharge on drivers’ licenses or
renewal of automobile license tags, adding extra fines on DUI or other motor vehicle violations, and permitting voters to decide to increase the county sales tax with these funds exclusively allocated to trauma care.
State Health Exchanges
Since the implementation of the state health exchanges under the Affordable Care Act, some insurers have been limiting the number of physicians in their networks for health insurance products sold on the exchanges. In other cases, some procedures such as bariatric surgery may not be covered by these policies or may not be included as part of the essential benefits package determined by the state, or if an essential benefit then discriminatory coverage policies may be in place. Physician fee schedules may also be reduced, and Medicaid fee schedules that have been traditionally very low have in most states not seen payment increases.
The College supports efforts by chapters and surgeons to improve Medicaid payment rates, address restricted networks for insurance products sold on the state exchanges, and include coverage for surgical procedures such as bariatric surgery as part of the essential benefits package and/or included as a covered service through these products.
- General patient safety and quality
- Regulation of office-based surgery, ambulatory surgery centers, certificate of need
- Cosmetic laser surgery regulation
- Definition of surgery
- Uniform Accident and Sickness Policy Provision Law (UPPL)
- Diagnostic imaging restrictions
- Fair contracting/transparency
- Improving Medicaid payment rates
- Provider taxes
Medical Liability Reform
- Health courts
- Early disclosure
- Safe harbors
- Evidentary standards
- Licensure/maintenance of licensure